Virginia v. Black, 538 U.S. 343, 41 (2003)

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Cite as: 538 U. S. 343 (2003)

Opinion of Souter, J.

nation was rounded out with some illustrative examples. None of them, however, resembles the case before us.1

The first example of permissible distinction is for a prohibition of obscenity unusually offensive "in its prurience," ibid. (emphasis deleted), with citation to a case in which the Seventh Circuit discussed the difference between obscene depictions of actual people and simulations. As that court noted, distinguishing obscene publications on this basis does not suggest discrimination on the basis of the message conveyed. Kucharek v. Hanaway, 902 F. 2d 513, 517-518 (1990). The opposite is true, however, when a general prohibition of intimidation is rejected in favor of a distinct proscription of intimidation by cross burning. The cross may have been selected because of its special power to threaten, but it may also have been singled out because of disapproval of its message of white supremacy, either because a legislature thought white supremacy was a pernicious doctrine or because it found that dramatic, public espousal of it was a civic embarrassment. Thus, there is no kinship between the cross-burning statute and the core prurience example.

Nor does this case present any analogy to the statute prohibiting threats against the President, the second of R. A. V.'s examples of the virulence exception and the one the majority relies upon. Ante, at 362. The content discrimination in that statute relates to the addressee of the threat and reflects the special risks and costs associated with threatening the President. Again, however, threats against the President are not generally identified by reference to the content of any message that may accompany the threat, let alone any viewpoint, and there is no obvious correlation in fact between victim and message. Millions of statements are made about the President every day on every subject

1 Although three examples are given, the third may be skipped here. It covers misleading advertising in a particular industry in which the risk of fraud is thought to be great, and thus deals with commercial speech with its separate doctrine and standards. R. A. V., 505 U. S., at 388-389.

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