Banish hatred ... but Virginia's paramilitary prohibition is unconstitutional

Virginia Attorney General Mark Herring wants to extinguish hate in Virginia. For that, he deserves heaps of praise. But in his zealousness to rid Old Dominion of white supremacism’s virulence, he should be more mindful of the Constitution.

Herring has declared his intention to “reintroduce legislation to better protect Virginians” from hate spewed by white supremacists and similarly vile extremist groups. He has been traveling the state to build support for the new law.

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For the most part, Herring’s ideas are reasonable, if not prudent. Yet there is one provision that is, at best, constitutionally problematic. Offered as a measure to “further restrict the kind of paramilitary activity by white supremacist militias and similar groups that was seen in Charlottesville in August 2017,” the proposed law, if it is to at all resemble Herring’s previous paramilitary bill, is unconstitutionally vague.

The last version of the bill, which was narrowly defeated in the Committee for Courts of Justice in January 2018, says a person is guilty of unlawful paramilitary activity if he or she assembles “with one or more persons with the intent of intimidating any person or group of persons by drilling, parading or marching with any firearm, any explosive or incendiary device, or any components or combination thereof.” Violations of the law would carry fines up to $2,500 and imprisonment for up to 10 years.

The all-important language is “with the intent of intimidating.” Absent a clear definition of what should be considered an intent to intimidate, the statute’s remaining text is remarkably broad and almost certainly unconstitutional.  

So what does “with the intent of intimidating” mean?

To start, it’s important to identify precisely what is at issue. Although the law implicates Second Amendment rights, the heart of the problem here concerns free expression, not the right to keep and bear arms. This is because without any accompanying or discernible expression of speech or viewpoint, the simple act of lawfully carrying a firearm alone legally cannot be considered “intimidation” (unless, for example, one points the firearm at another person as a threat — an act that already is unlawful, Herring’s proposed law notwithstanding).

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With free speech in mind, a 2003 Virginia case concerning intimidation and free speech is instructive. In 2003, the U.S. Supreme Court in Virginia v. Black considered whether a Virginia statute that banned cross burning with “an intent to intimidate a person or group of persons” violated the First Amendment. The same statute also provided that cross burning itself is “prima facie evidence of an intent to intimidate a person or group of persons.”

The court held in that case that a state could ban cross burning intended to intimidate, but could not require juries to treat cross burning as sufficient evidence to satisfy the intent requirement of the law, because doing so “chills constitutionally protected political speech.” In holding so, the court created a curious legal dichotomy in which a state may prohibit speech intended to intimidate, but it may not infer intimidation from the message’s viewpoint.

That begs the question: If cross burning — the de facto symbol of violent bigotry — can’t serve as sufficient evidence of an intent to intimidate, what can?

If a swastika-tattooed man carries a concealed firearm and shouts racist epithets at a black family across a parking lot, can a jury lawfully infer an intent to intimidate from such conduct? If so, on what basis? His visible swastika? His holstered firearm? His racist outbursts? All three, generally speaking, are protected by the Constitution. And rights do not lose their legal potency when exercised simultaneously.

Of course, in a real-world case, more facts would lend greater clarity. But unlike the cross burning statute, where lines could be more easily drawn (e.g., was the cross burned on someone’s front lawn, or in the woods at a private meeting?), Herring’s proposed law makes any meaningful factual distinction virtually impossible; indeed, the law encompasses any assembly of people, at any location, public or private, at any time. Moreover, threats of imminent bodily harm cannot serve as factual distinctions; such threats already are prohibited under Virginia law.

In Skilling v. United States, Justice Ruth Bader Ginsburg wrote that due process requires penal statutes “define the criminal offense (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and discriminatory enforcement.” In its current form, Herring’s proposed paramilitary law fails that test. It burdens juries with the insuperable task of determining what constitutes “intimidation” without relying on the viewpoint of the speaker (when in the case of white supremacists, it is usually the viewpoint itself that proves to be most intimidating), or inadvertently ascribing another, separate crime to the accused.

For that reason, it is unlikely ordinary people can understand, with any definiteness, what sort of conduct is prohibited. And although Herring’s law sympathetically takes aim at white supremacism, such designs are clearly an implicit attempt to “impose special prohibitions on those speakers who express views on disfavored subjects.”

Herring is right to want to eradicate white supremacism and hate from Virginia. But in his worthy quest to do so, he cannot ignore the Constitution.

Thomas Wheatley is an attorney and writer. He is a regular contributor to The Hill and the Washington Post’s “All Opinions Are Local” blog, and was a 2016 Publius Fellow at the Claremont Institute. Follow him on Twitter @TNWheatley. The views expressed here are his own.