Cite as: 538 U. S. 343 (2003)
Opinion of O'Connor, J.
of Md. v. Joseph H. Munson Co., 467 U. S. 947, 965, n. 13 (1984); Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 845-846, n. 8 (1970); Monaghan, Over-breadth, 1981 S. Ct. Rev. 1, 10-12; Blakey & Murray, Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law, 2002 B. Y. U. L. Rev. 829, 883, n. 133. As construed by the jury instruction, the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself.
It is apparent that the provision as so interpreted " 'would create an unacceptable risk of the suppression of ideas.' " Secretary of State of Md. v. Joseph H. Munson Co., supra, at 965, n. 13 (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 797 (1984)). The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prose-cute—and potentially convict—somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.
As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group
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