case, three individuals including Richard Elliott and Jonathan O'Mara burned a cross on May 2, 1998 on the property of an African American, James Jubilee, for the apparent motivation of gaining revenge for a complaint Jubilee made about shots being fired from Elliott's backyard. These men were not associated with the KKK but Jubilee did feel his safety threatened by the act as he considered it a symbolic message indicating steps towards future attacks. O'Mara pleaded guilty to cross burning and conspiracy to cross burning but chose to contest the constitutionality of the statute according to the First Amendment. He, too, was found guilty and fined $2,500 along with a ninety-day jail sentence. The jury at Elliott's trial acquitted him on the charge that he conspired to commit cross burning but convicted him of cross burning. He received a similar sentence as O'Mara, and both appealed to the Virginia Supreme Court claiming the unconstitutionality of the law. The Supreme Court combined the three cases and the judgment affirmed the law in part and vacated in another part. The Court, in a 6-3 decision, found that it was in accordance with the Constitution to ban cross burning with the intent to intimidate, but also noted that the prima facie evidence clause makes the law itself too general because the provision assumes an unproven fact. Therefore, according to the Supreme Court, it is Constitutional to make cross burning with the intent to intimidate illegal, as long as the intent can be proved without the use of prima facie.
             Is cross burning such a symbol that its historical associations are sufficient evidence to assume an intention behind the act? In order to fall under prima facie evidence, the very existence of a burning cross must connote a threat to an individual or group. In these cases, the trial courts determined that the symbol is so intimately associated with Klan threats that it is enough to assume g...