CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #44

Chapter 15. PROTECTION OF PENUMBRAL FIRST AMENDMENT RIGHTS

1. Symbolic Speech

UNITED STATES V. O'BRIEN, p. 1566 (1968)

  • For what conduct was O'Brien prosecuted? Was it "speech"?
    • was O'Brien intending to communicate an idea through his conduct?
    • does it help to ask whether particular conduct is "predominantly speech" or "predominantly conduct"?
    • what was the significance to O'Brien's message, if any, of the fact that his conduct was illegal? if it was significant, does that affect the constitutionality of his prosecution?
  • What was the government's purpose in prohibiting that conduct?
    • was it aiming at O'Brien's message?
    • was it aiming at the physical integrity of the draft card?
    • how do we know what the purpose was?
  • Was the prohibition broader, in relation to speech, than was necessary to accomplish the government's purpose?

Flag-burning: can it constitutionally be prohibited? Five failed attempts:

  • Street v. New York (1969):"publicly mutilating, defacing, defiling or defying, trampling on or casting contempt on any flag of the United States" -- the specific charge against Street recited the words he spoke while burning, as contemptuous
  • Smith v. Goguen (1972): "treat contemptuously the flag"
  • Spence v. Washington (1974): display of any U.S. or state flag with any "word, figure, mark, picture, design, drawing or advertisement of any nature"
  • TEXAS V. JOHNSON, p. 1568 (1989): "deface, damage, or otherwise physically mistreat [a state or national flag] in any way that the actor knows will seriously offend one or more persons likely to observe or discover his action."
  • United States v. Eichman, p. 1573 (1990): federal statute: "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States"
  • In terms of the O'Brien test, what is the problem with all of these attempts? Can you think of a way around the problem?

CITY OF ERIE V. PAP'S A.M., p. 1573 (2000).

  • how does this case differ from Barnes?
  • are the Justices able to clarify their positions? find a majority for analytical purposes?
  • does the Court have sufficient evidence before it to render a final decision (Souter)?