Emily's notes: Expressive Conduct and the Court

Question 1

How does the court decide if the conduct is expressive?

Answer 1

Is the conduct expressive?
Is the government regulation directly related to the suppression of expression?
Is there an intent to express a message?
Is there a likelihood the message will be understood by witnesses?

If so….

Is the regulation aimed at suppressing speech?

Yes = strict scrutiny to determine if regulation is constitutional 
No = intermediate scrutiny might be constitutional, might not be

Question 2

What is strict scrutiny?

Answer 2

• Does the regulation advance a compelling government interest?
• Is the regulation necessary and narrowly tailored?

Question 3

What is intermediate scrutiny (The O’Brien Test)?

Answer 3

• Is the government regulation within the constitutional power of the government?
• Does the regulation advance an important or substantial government interest?
• Is the expressed interest unrelated to the suppression of free expression?
• Is the incidental restriction of expression no greater than necessary to further the government interest?

Question 4

What is the background behind Texas v. Johnson (1989)?

Answer 4

After publicly burning the American flag, the Defendant, Gregory Lee Johnson (Defendant), was convicted of desecrating a flag in violation of Texas law. The Court of Criminal Appeals overturned the conviction.

Question 5

What is the issue behind Texas v. Johnson?

Answer 5

Whether Defendant’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment of the United States Constitution (Constitution)?

Whether the state’s interest in preserving the flag as a symbol of nationhood justifies Defendant’s conviction?

Question 6

Texas expressed two governmental interests in prohibiting flag burning

Answer 6

• the prevention of a breach of peace

- preserving the flag as a symbol of nationhood and national unity

Question 7

What was the outcome of Texas v. Johnson?

Answer 7

Yes. Judgment of the Court of Criminal Appeals affirmed. The very purpose of a national flag is to serve as a symbol of our country. Pregnant with expressive content, the flag as readily signifies this nation as does the combination of letters found in “America.” Texas conceded that Defendant’s conduct was expressive conduct. He burned the flag as part of a political demonstration. Therefore, Defendant’s burning of the flag constituted expressive conduct thereby permitting him to invoke the First Amendment of the Constitution.
No. Judgment of the Court of Criminal Appeals affirmed. The state’s restriction on Defendant’s expression is content-based. Therefore, the state’s asserted interest in preserving the special symbolic character of the flag must be subjected to the “most exacting scrutiny.” To say that the Government has an interest in encouraging proper treatment of the flag is not to say that it may criminally punish a person for burning the flag as a means of political protest. Therefore, the state’s interest in preserving the flag as a symbol of nationhood does not justify Defendant’s conviction because it is not consistent with the First Amendment of the Constitution.

Question 8

Does Texas v. Johnson involve strict scrutiny? (Use the test).

Answer 8

Prevention of a breach of the peace

Does the government have the constitutional power to regulate activity that might breach the peace? Yes.

Does the regulation further an important or substantial government interest? Yes

Is the interest in maintaining the peace unrelated to the suppression of expressi
on? Yes.

Is the incidental restriction of free expression no greater than is essential to the furtherance of the stated interested? No.

Preserving the flag as a symbol of national unity

Is that interest directly related?…Yes.
Yes = strict scrutiny

Is there a compelling government interest?
Yes.

Is the regulation necessary and narrowly tailored to advance that interest?…No.

Question 9

What is the background behind Cohen v. California (1971)?

Answer 9

The Defendant was convicted under a California law for wearing a jacket that had on it, “F— the draft” outside the municipal courthouse during the Vietnam War. The Defendant did not threaten or engage in any act of violence. The state court affirmed his conviction holding that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace.”

Question 10

What was the issue behind Cohen v. California?

Answer 10

Whether California can excise, as “offensive conduct,” one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reactions or upon a more general assertion that the states, acting as guardians of the public morality, may properly remove this offensive word from the public vocabulary?

Question 11

What was the outcome of Cohen v. California?

Answer 11

No. Judgment of the lower courts reversed. Defendant’s speech is protected by the First Amendment of the United States Constitution (Constitution). The only conviction that the state sought to punish was communication. Thus, this case rests solely upon “speech.” The state lacks power to punish Defendant for the content of his message because he showed no intent to incite disobedience to the draft. Thus, his conviction rests upon his exercise of the “freedom of speech” and can only be justified as a valid regulation of the manner in which he exercised that freedom. This is not an obscenity case because his message is not erotic. This case does not involve “fighting words” because his message is not directed at another person. Further, the public is free to avert their eyes from the distasteful message. His message constitutes emotive speech because it seeks to get our attention. This speech is protected by the First Amendment of the Constitution. Therefore, his conviction must be overturned.

Justice John Marshall Harlan – words have emotive effect as well as communicative

Question 12

What is the background behind Chaplinksy v. New Hampshire (1942)?

Answer 12

A New Hampshire statute prohibited any person from addressing any offensive, derisive or annoying word to any other person who is on any street or public place or calling him by any derisive name. Chaplinsky, a Jehovah’s Witness, called a City Marshal a “God damned racketeer” and a “damned fascist” in a public place and was therefore arrested and convicted under the statute.

Question 13

What was the issue behind Chaplinsky v. New Hampshire?

Answer 13

Did the statute or the application of the statute to Chaplinsky’s comments violate his free speech rights under the First Amendment of the Constitution?

Question 14

What was the outcome of Chaplinsky v. New Hampshire?

Answer 14

No. The lower court is affirmed.
Considering the purpose of the First Amendment of the Constitution, it is obvious that the right to free speech is not absolute under all circumstances. There are some narrowly defined classes of speech that have never been protected by the First Amendment of the Constitution. These include “fighting words,” words that inflict injury or tend to excite an immediate breach of the peace. Such words are of such little expositional or social value that any benefit they might produce is far outweighed by their costs on social interests in order and morality.
The statute at issue is narrowly drawn to define and punish specific conduct lying within the domain of government power. Moreover, the Supreme Court of New Hampshire, which is the ultimate arbiter of the meanings of New Hampshire law, has defined the Statute as applying only to “fighting words”. Therefore, the Statute does not unconstitutionally impinge upon the right of free speech.

Fighting words “are no essential part of any expression of ideas” and are of slight social value

Question 15

Was Virginia v. Black (2003) the original name of the case?

Answer 15

No.

• Commonwealth v. Black
• Black v. Commonwealth
• Virginia v. Black

Question 16

What is the background of Virginia v. Black?

Answer 16

Black (D) was prosecuted because of burning a cross, and convicted of the same by a jury, under the cross-burning statute of Virginia (P) which bans cross burning with the object of creating fear in a person or a group. Such an action is taken to be evidence, prima facie, of such an intention, under a section of the law. The Virginia Supreme Court upheld the decision and Black (D) appealed.

Question 17

What was the issue behind Virginia v. Black?

Answer 17

Is the provision in this or any other state’s cross-burning statute unconstitutional in viewing any such incident as prima facie evidence of having an intention to create fear in, or a threat to another person or group?

Question 18

What was the outcome of Virginia v. Black? What were the judges opinions?

Answer 18

The law was unconstitutional…but cross burning, as intimidating speech, may be restricted

O’Connor joined by 4 others: The 1stA is not absolute; cross burning is intimidating; it is a kind of threat and, therefore, may be proscribed
O’Connor plurality; joined by 3: Not all cross burning is intimidating speech; the prima facie evidence clause makes the law unconstitutional
Scalia, concurring in judgment and dissenting in part: Let the lower court construe the prima facie evidence clause
Souter, concurring in judgment and dissenting in part; the statute is content-based and does not fit any R.A.V. exceptions; unconstitutional because of the prima facie evidence clause