Page:Counterman v. Colorado.pdf/51

Rh Our decision in Black illustrates the point. There, the Court considered a Virginia law that prohibited cross burning “ ‘with the intent of intimidating any person or group of persons.’ ” 538 U. S., at 348. Notably, the statute included a presumption: “ ‘Any such burning of a cross shall be prima facie evidence of an intent to intimidate.’ ” Ibid. After three men were convicted under the statute, they challenged it as facially unconstitutional. We upheld the general prohibition on cross burning, concluding that the First Amendment allows the government to ban “a particular type of threat.” Id., at 362–363. A plurality then went on to address the statutory presumption. While cross burning “may mean that a person is engaging in constitutionally proscribable intimidation,” the plurality reasoned, the act is not monolithic. Id., at 365. Cross burning could be directed “at an individual” or “at a group of like-minded believers”; it could be done “on a neighbor’s lawn” or “at a public rally”; it could be done with the property owner’s “permission” or without it. Id., at 366. The presumption “blur[red] the line” between these different situations and “ignore[d] all of the contextual factors that are necessary to decide whether a particular cross burning” was covered by the statute or not.