O’Brien burned his selective service
card and was convicted under a Federal law which made it unlawful for any
person to forge, alter, knowingly destroy or knowingly mutilate any draft card.
How is this even a first amendment
case – isn’t this just a run of the mill criminal case involving unlawful
conduct?
Suppose I burn my trash in violation
of a no burning ordinance. Does the First Amendment protect my right to burn
whatever I want to burn?
Some conduct is purely
non-expressive. I rob a bank or drive my
car 100 mph in a school zone.
Other conduct has both expressive
and non-expressive elements.
How do we distinguish mere conduct
from expressive conduct?
Take a look at page 1588 where the
Court in Texas v. Johnson explains the expressive conduct test:
“[W]e
have asked whether ‘an intent to convey a particularized message was present,
and whether the likelihood was great that the message would be understood by
those who viewed it.”
Okay.
So both O’Brien and Johnson involved expressive conduct – the
messages in O’Brien and Johnson seem apparent. Strong opposition to the war and the draft in
O'Brien and political opposition to Ronald Reagan and the Republican
party in Johnson.
Should symbolic conduct be protected
as expression under the First Amendment?
Once we are dealing with symbolic
acts, O’Brien gives us a four-part test for determining when a government interest in regulating the nonspeech
element sufficiently justifies the regulation of expressive conduct (p.
1585):
The government regulation of
expressive conduct is valid if:
1) it is within the Constitutional
power of government [raising an army]
2) furthers an important or
substantial interest [preventing harm to the smooth and efficient functioning
of the Selective Service System]
3) if the governmental interest is
unrelated to the suppression of free expression; and
4) if the incidental restriction on
free expression is no greater than is essential to the furtherance of that
interest.
The difference between O’Brien and
Johnson is the third prong of the test – in O’Brien the regulation,
at least on its face, was unrelated to the suppression of speech (it was
designed simply to ensure that draft cards would be preserved in order to
maintain an efficient Selective Service System).
In Johnson, the laws were
designed to protect the symbolic value of the flag as representing National
unity and nationhood. p. 1589-1590: “We are thus outside of O’Brien’s test altogether.” Strict scrutiny. Content or viewpoint restriction on
expressive conduct. (P. 1590)
As the majority states in Johnson
on page 1590: “If there is a bedrock principle underlying the First Amendment,
it is that the Government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable.”
Suppose in O’Brien Congress
had banned the destruction of any draft card or any representation (e.g.
Kinko’s Color Copy) of a draft card – O’Brien burns an artistic reproduction of
a selective service card (not his actual card) and is prosecuted. Now, we have a case akin to Johnson!
Are burning down buildings and looting stores to protest capitalism symbolic conduct protected by the Free Speech Clause?
Suppose O'Brien was a custom cake artist who designed a cake depicting a burning draft card? Pure speech or symbolic conduct? What is the "non-speech element" here?
No ad hoc exceptions (see P.
1590).
Is the American flag different? Notice Chief Justice Rehnquist and Justice
Stevens want to create an ad hoc exception –
burning the American flag is"unique” (p. 1590=1591). What do you think?
- “Hate
speech is unique.”
- “Blasphemy
is unique.”
- “Residential
demonstrations are unique.”
- “The Nazis marching in Skokie is
unique.”
- “The
workplace is unique.”
- “Speech
that offends me is unique.”
What about Rehnquist’s argument –
burning a flag is so offensive as to "incite a breach of the peace?"
Is it? (p. 1591) Is that a reason to forbid it, or a reason to protect it from a heckler's veto?
Is holding up a poster with a
swastika on it like fighting words?
What about a museum displaying an
artistic work, entitled “Piss Christ,” that depicts a crucifix submerged in a
vat of the artist’s urine? Fighting
words?
Is burning an effigy of President Trump fighting words? Or protected speech?
Although "fighting words" are a class of unprotected speech, the Court has said that "unprotected fighting words occur only if the speech is directed to a specific person and likely to provoke violent response." Chemerinsky Book at 1054.
Contrast Phelps demonstrating with anti-Catholic signs vs. Phelps directly addressing a particular person with an anti-Catholic epithet.
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