The U.S. Supreme Court case Virginia v. Black, Elliott, and O'Mara in 2002 dealt with the constitutionality of a Virginia statute that prohibited cross burning intended to intimidate others. The defendants were convicted under this law for their involvement in two separate incidents of cross burning. They appealed on First Amendment grounds, arguing that the statute was overly broad and infringed upon their right to free speech. The Supreme Court held that while the First Amendment does protect certain forms of symbolic speech, it doesn't protect conduct such as cross burning when done with intent to intimidate because it is tantamount to a threat or intimidation which is not protected by freedom of expression rights.

In the dissenting opinion for Virginia v. Barry Elton Black, Richard J. Elliott, and Jonathan O'Mara, Justice Souter argued that the state of Virginia's cross-burning statute was not inherently unconstitutional as it did not prohibit all forms of expression but specifically targeted intimidating conduct intended to threaten or terrorize others. He contended that a burning cross is a unique symbol with historical implications tied to racial hatred and intimidation; thus its use could be seen as an act of threat rather than free speech protected by the First Amendment. Furthermore, he disagreed with the majority's view that intent to intimidate must be proven in every case under this law; instead he believed it should suffice if circumstances make clear that intimidation was likely intended.