Doctrinal development or devolution?: An examination of the incidental regulation test from Texas V. Johnson through Holder v. Humanitarian Law Project.

• Author: Hansman, Raleigh E.

In 1968, the United States Supreme Court proffered a new Track Two test, via Texas v. Johnson, with the ability to constitutionally validate government regulations that incidentally burdened free speech rights. Over the past fifty years, this "incidental regulation test" has volleyed back and forth between being either a pro-plaintiff or a go-to government doctrine. In the 2010 Holder v. Humanitarian Law Project case the Court refused to apply the incidental regulation test despite the government's request and the test's relevance to the matter at issue. The Court's departure from the incidental regulation test's current evolutionary status and generally accepted constitutional principles was incorrect and inappropriate. As a result, more questions than answers have been generated as to the incidental regulation test's future utility and application.

1. INTRODUCTION

   The United States Constitution's First Amendment guarantees are the most highly prized, coveted, and guarded of fundamental rights. (1) When government-enacted regulations, whether local, state, or national, infringe upon these freedoms, litigation becomes inevitable. (2) The standard upon which the regulation is analyzed is determined by whether the regulation is content-based or content-neutral. (3) This track-based tug-of-war becomes the determinative factor as to the level of contravention one's First Amendment rights will suffer. (4)

   First, this article explores the factual and procedural history of U.S. v. O'Brien, (5) which spawned the incidental regulation test. (6) A brief discussion of the incidental regulation test's progression from inception to 1989 follows. (7) This note then details the factual and procedural history of Texas v. Johnson, (8) which refined the incidental regulation test's applicability. (9) It continues with a detailed survey of cases that explore the incidental regulation test's development post-Johnson. (10) Next, the article details the factual and procedural history of Holder v. Humanitarian Law Project. (11)

   The article's second section provides an analysis of the test's refinement and conversion from a government-preferred to a plaintiff-captured doctrinal standard. (12) A discussion as to the improper application of the incidental regulation test, including whether the test's proper application would have changed Holder s ultimate holding, follows. (13) Additionally, this note will illustrate the proper application of the incidental regulation test to the Holder facts and how, in its appropriate function, it would have facilitated a stronger plaintiff position. (14)

2. BACKGROUND

   1. U.S. v. O'BRIEN: THE CREATION OF THE INCIDENTAL REGULATION TEST

      David Paul O'Brien, along with three colleagues, burned his Selective Service registration form on the South Boston Courthouse steps on March 31, 1966. (15) The crowd that witnessed the burning subsequently attacked O'Brien and his friends. (16) Three Federal Bureau of Investigation ("FBI") agents were among the crowd members and assisted O'Brien to safety within the courthouse. (17) O'Brien informed the FBI "that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law." (18)

      O'Brien was indicted under Title 50, App., United States Code, section 462(b). (19) This statute had been amended in 1965, with its added language rendering O'Brien's registration card burning illegal. (20) Specifically, the amendment made it an offense for any person "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate." (21)

      At trial, O'Brien challenged the amendment on free speech grounds. (22) "O'Brien argued that the 1965 Amendment prohibiting the knowing destruction or mutilation of certificates was unconstitutional because it was enacted to abridge free speech, and because it served no legitimate legislative purpose." (23) His contention was rejected by the District Court. (24) O'Brien appealed. (25)

      The First Circuit Court of Appeals agreed with O'Brien on the First Amendment issue. (26) At the time when the amendment was enacted, a regulation promulgated by the Selective Service, which required registrants to keep their certification cards on their person at all times, was already in effect. (27) As a result, the conduct punishable under the amendment was already punishable under the Selective Service regulation. (28) The court found that "the Amendment served no valid purpose ... in light of the prior regulation," and concluded "that the 1965 Amendment ran afoul of the First Amendment by singling out persons engaged in protests for special treatment." (29) The First Circuit, however, did not vacate O'Brien's conviction. (30) Instead the court affirmed his conviction in alignment with 50 U.S.C. section 462(b). (31) In the court's opinion, the federal statute "'made violation of the nonpossession regulation a crime, because it regarded such violation to be a lesser included offense of the crime defined by the 1965 Amendment." (32)

      In the government's petition for certiorari, it argued that the statute was constitutional and that the First Circuit Court of Appeal's contrary holding was inconsistent with the Second (33) and Eighth Circuits. (34) In response, O'Brien contended that the amendment was unconstitutional as applied to him "because his act of burning his registration certificate was protected 'symbolic speech' within the First Amendment." (35) He argued that the burning of his registration materials was within the definition of "'communication of ideas by conduct" and was therefore entitled to First Amendment protection. (36)

      In coming to its holding, the Court recognized that, in the past, it had held that "when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." (37) From this acknowledgment, the Court promulgated the "incidental regulation test." (38) This new, four-part standard would justify a government regulation that incidentally infringes upon First Amendment freedoms provided it was (1) "within the constitutional power of the Government;" (2) "if it furthers an important or substantial governmental interest;" (3) "if the governmental interest is unrelated to the suppression of free expression;" and (4) "if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (39)

      In applying the incidental regulation test, the Court found that the 1965 amendment satisfied the requirements. (40) Specifically, the Court held (1) that Congress had the constitutional power "to raise and support armies and to make all laws necessary and proper to that end ... " (41); (2) that Congress has a "legitimate and substantial interest in preventing their wanton and unrestrained destruction [of Selective Service cards] ... " (42) which is furthered by the 1965 amendment; (3) that the regulation is unrelated to a suppression of expression; (43) and (4) that there was "no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which prohibits their wilful [sic] mutilation or destruction." (44) In the absence of a constitutional violation, the Court vacated the Court of Appeals judgment and reinstated O'Brien's sentencing by the District Court. (45)

   2. THE INCIDENTAL REGULATION TEST'S DEVELOPMENT FROM 1968 TO 1989

      After O'Brien, the incidental regulation test evolved as the go-to doctrine to justify governmental regulations that inadvertently, though adversely, burdened free speech rights. (46) As a result, the incidental regulation test became a subset of the lesser judicially scrutinized content-neutral track. (47) Since 1968, the incidental regulation test was employed in multiple cases to determine the constitutionality of government regulations. (48) Of those cases, only one came out favorable to the free speech challenger. (49) These decisional inconsistencies can be attributed to the incidental regulation's broad use beyond the context of symbolic speech. (50)

      With its expanded use, however, the original level of judicial scrutiny diminished. (51) Of the four-part test, this deterioration predominantly affected the substantiality and means prongs. (52) The "unrelated to the suppression of expression" prong was the least disturbed but still morphed in the direction of content-neutral scrutiny. (53) In short, within twenty years, the courts reduced the incidental regulation test to the rational basis standard. (54) "[T]he Court's recent decisions regarding the incidental regulation doctrine represent a regressive approach to the protection traditionally afforded free speech interests." (55) With the reduction in judicial scrutiny, regulations that would have been struck down under the incidental regulation test were wrongfully upheld. (56)

   3. TEXAS V. JOHNSON: CHANGES ON THE HORIZON

      Gregory Lee Johnson was convicted under a Texas statute for desecration of a venerated object (57) after he set an American flag afire. (58) The incident took place outside Dallas City Hall during the Republican National Convention of 1984. (59) Johnson, one of more than one hundred protesters, was the only individual charged with a crime. (60) He was sentenced to one year in prison and received a $2,000 fine. (61) Johnson's conviction was affirmed by the Court of Appeals for the Fifth District of Texas at Dallas, (62) but was reversed by the Texas Court of Criminal Appeals. (63) The Court of Criminal Appeals recognized Johnson's conduct as First Amendment protected symbolic speech, stating that, "[g]iven the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellant's act would have understood the message...