CROSS BURNING MAKES MY HEAD HURT

The Supreme Court's ruling in Virginia v. Black has been hailed in the press as "upholding" VA's cross-burning law. Huh? From the second paragraph of O'Connor's opinion: "We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form." As far as I understand it, the Court is concluding here that only some kinds of cross-burning statutes are legitimate, and VA currently does not have such a law. The Court opened up space for state and lower federal courts to find that certain kinds of cross-burning statutes are constitutional (if they explicitly link the cross-burning with intimidation), and it opened up space for the VA court to find that VA's law is constitutional if the section that makes cross-burning itself evidence of intent to discriminate is severable from the rest of the statute. But the VA Supreme Court can still kill the law if it wants to do so, apparently, by finding that the provision on evidence is not severable. I have no expertise in severability and I do not know what the VA court wants to do here, so I have no idea whether or not VA's law will actually stand.

Thomas dissented because he thought the statute should stand as it is and that all the convictions under the statute should be upheld, whereas O'Connor and the rest of the Court (not sure about Stevens) thought that one of the convictions could not stand at all, and that the other convictions could only stand if the VA court now jumps through a new set of hoops. (Jacob Levy is confused here, -- see his original post -- and he's right: the whole thing is pretty confusing.)

NOTE: see Eugene Volokh's post here, which soups up the language a bit but more or less says the same thing and provides more detail than I did (and he did it a few hours earlier than me).