O'Brien, Johnson, and Symbolic Speech

            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!

 

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.