376
Opinion of Scalia, J.
Perhaps more alarming, the plurality concedes, ante, at 364, 365, that its understanding of the prima-facie-evidence provision is premised on the jury instructions given in respondent Black's case. This would all be well and good were it not for the fact that the plurality facially invalidates § 18.2-423. Ante, at 367 ("[T]he prima facie evidence provision, as interpreted through the jury instruction and as applied in Barry Black's case, is unconstitutional on its face"). I am aware of no case—and the plurality cites none—in which we have facially invalidated an ambiguous statute on the basis of a constitutionally troubling jury instruction.5 And it is alto-White, Blackmun, Powell, O'Connor, and Scalia, JJ.) (to succeed in a facial challenge without relying on overbreadth doctrine, "the challenger must establish that no set of circumstances exists under which the Act would be valid").
Even if I were willing, as the plurality apparently is, to ignore our repudiation of the Munson dictum, that case provides no foundation whatever for facially invalidating a statute under the conditions presented here. Our willingness facially to invalidate the statute in Munson without reliance on First Amendment overbreadth was premised on our conclusion that the challenged provision was invalid in all of its applications. We explained that "there is no core of easily identifiable and constitutionally proscribable conduct that the statute prohibits." Munson, 467 U. S., at 965-966. And we stated that "[t]he flaw in the statute is not simply that it includes within its sweep some impermissible applications, but that in all its applications it operates on a fundamentally mistaken premise that high solicitation costs are an accurate measure of fraud." Id., at 966. Unless the Court is prepared to abandon a contention that it takes great pains to establish—that "the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence," ante, at 360—it is difficult to see how Munson has any bearing on the constitutionality of the prima-facie-evidence provision.
5 The plurality's reliance on Terminiello v. Chicago, 337 U. S. 1 (1949), is mistaken. In that case the Court deemed only the jury instruction, rather than the ordinance under review, to be constitutionally infirm. To be sure, it held that such a jury instruction could never support a constitutionally valid conviction, but that is quite different from holding the ordinance to be facially invalid. Insofar as the ordinance was concerned, Terminiello made repeated references to the as-applied nature of the
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