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in an 8-1 decision, the justices affirmed a Virginia Supreme Court ruling that held the state law making cross-burning with intent to intimidate a criminal offense is unconstitutional because the statute contains a provision that the simple act of burning the cross is prima facie proof of intent to intimidate. Virginia v. Black, No. 01-1107. The justices held, however, that cross-burning with intent is not protected by the First Amendment and may be banned by state law. The court vacated and remanded the sentences of the defendants who were convicted by courts that gave the prima facie evidence provision as a jury instruction, explaining that the provision makes it more likely than not that a jury will find that a defendant had burned the cross with intent to intimidate, whether that intent was there or not. O’Connor delivered the court’s opinion. Thomas filed a dissenting opinion.

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