372
Opinion of Scalia, J.
ford, 408 U. S. 104, 114 (1972) (a statute may be overbroad "if in its reach it prohibits constitutionally protected conduct" (emphasis added)); R. A. V. v. St. Paul, 505 U. S., at 397 (White, J., concurring in judgment) (deeming the ordinance at issue "fatally overbroad because it criminalizes . . . expression protected by the First Amendment" (emphasis added)).
Unwilling to embrace the Virginia Supreme Court's novel mode of overbreadth analysis, today's opinion properly focuses on the question of who may be convicted, rather than who may be arrested and prosecuted, under § 18.2-423. Thus, it notes that "[t]he 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." 1 Ante, at 365 (emphasis added). In such cases, the plurality explains, "[t]he provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself." Ibid. (emphasis added). And this, according to the plurality, is constitutionally problematic because "a burning cross is not always intended to intimidate," and nonintimidating cross burning cannot be prohibited. Ibid. In particular, the opinion notes that cross burning may serve as "a statement of ideology" or "a symbol of group solidarity" at Ku Klux Klan rituals, and may even serve artistic purposes as in the case of the film Mississippi Burning. Ante, at 365-366.
The plurality is correct in all of this—and it means that some individuals who engage in protected speech may, be-1 The plurality also asserts that "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." Ante, at 365. There is no basis for this assertion. The Virginia Supreme Court's opinion in Nance v. Commonwealth, 203 Va. 428, 432, 124 S. E. 2d 900, 903-904 (1962), states, in no uncertain terms, that the presentation of a prima facie case " 'relieves neither the court nor the jury of the duty to determine all of the questions of fact from the weight of the whole evidence.' " (Emphasis added.)
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