Of Conduct, Content, and Categories

• Author: Ruthann Robson
• Pages: 88-156

Robson The First Amendment

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Chapter&Three:&OF&CONDUCT,&CONTENT,&

AND&CATEGORIES&

This chapter considers sometimes complex definitions of speech.

Speech must be distinguished from “mere” conduct, although the First

Amendment certainly protects expressive conduct and symbolic speech,

which are subject to definitional disputes.

The content of speech may place it in various categories of speech, some

more protected and some less protected as evinced by levels of scrutiny.

The content of speech may also exclude it from protection under the First

Amendment, as was apparent in the last chapter and which is also

explored in this and later chapters. Consider whether this “categorical

approach” to protectable speech is workable.

Chapter Outline

I.Defining!Expression!

United!States!v.!O’Brien!

Spence!v.!Washington!

Texas!v.!Johnson!

Notes!!

II.!Hate!Speech!!

R.A.V.!v.!St.!Paul!!

Wisconsin!v.!Mitchell!!

Virginia!v.!Black!!

Notes!!

Note:!“True!Threats”!!

III.!Considering!“Content”!in!the!Context!of!the!Military!!

Schacht!v.!United!States!!

United!States!v.!Alvarez!!

Notes!!

IV.!Note:!Developing!a!Structural!Analysis!of!Free!Speech!Issues!!

Robson The First Amendment

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I.&&Defining&Expression&

We often express ourselves through gestures and “conduct.” Should

these be protected to the same extent as speech? How should the

expressive aspect of conduct be assessed?

United$States$v.$O’Brien$

391 U.S. 367 (1968)

WARREN, C.J., DELIVERED THE OPINION OF THE COURT; MARSHALL, J., TOOK NO PART IN THE

CONSIDERATION OF THE CASE; HARLAN, J., FILED A CONCURRING OPINION. DOUGLAS, J., FILED A

DISSENTING OPINION.

CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT.

On the morning of March 31, 1966, David Paul O'Brien and three companions

burned their Selective Service registration certificates on the steps of the South

Boston Courthouse. A sizable crowd, including several agents of the Federal

Bureau of Investigation, witnessed the event. Immediately after the burning,

members of the crowd began attacking O'Brien and his companions. An FBI

agent ushered O'Brien to safety inside the courthouse. After he was advised of

his right to counsel and to silence, O'Brien stated to FBI agents that he had

burned his registration certificate because of his beliefs, knowing that he was

violating federal law. He produced the charred remains of the certificate, which,

with his consent, were photographed.

For this act, O'Brien was indicted, tried, convicted, and sentenced in the United

States District Court for the District of Massachusetts. He did not contest the

fact that he had burned the certificate. He stated in argument to the jury that

he burned the certificate publicly to influence others to adopt his antiwar

beliefs, as he put it, "so that other people would reevaluate their positions with

Selective Service, with the armed forces, and reevaluate their place in the

culture of today, to hopefully consider my position."

The indictment upon which he was tried charged that he "willfully and

knowingly did mutilate, destroy, and change by burning . . . [his] Registration

Certificate (Selective Service System Form No. 2); in violation of Title 50, App.,

United States Code, Section 462 (b)." *** [It had been] amended by Congress in

1965, 79 Stat. 586 (adding the words italicized below), so that at the time

O'Brien burned his certificate an offense was committed by any person,

"who forges, alters, knowingly destroys, knowingly mutilates, or in any

manner changes any such certificate. . . ." (Italics supplied.)

In the District Court, 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. The District Court rejected these arguments, holding that

the statute on its face did not abridge First Amendment rights, that the court

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was not competent to inquire into the motives of Congress in enacting the 1965

Amendment, and that the Amendment was a reasonable exercise of the power

of Congress to raise armies.

On appeal, the Court of Appeals for the First Circuit held the 1965 Amendment

unconstitutional as a law abridging freedom of speech. *** [This] decision

conflicted with decisions by the Courts of Appeals for the Second and Eighth

Circuits upholding the 1965 Amendment against identical constitutional

challenges. *** We hold that the 1965 Amendment is constitutional both as

enacted and as applied. ***

I.

When a male reaches the age of 18, he is required by the Universal Military

Training and Service Act to register with a local draft board. He is assigned a

Selective Service number, and within five days he is issued a registration

certificate (SSS Form No. 2). Subsequently, and based on a questionnaire

completed by the registrant, he is assigned a classification denoting his

eligibility for induction, and "[a]s soon as practicable" thereafter he is issued a

Notice of Classification (SSS Form No. 110). This initial classification is not

necessarily permanent, and if in the interim before induction the registrant's

status changes in some relevant way, he may be reclassified. After such a

reclassification, the local board "as soon as practicable" issues to the registrant

a new Notice of Classification.

Both the registration and classification certificates are small white cards,

approximately 2 by 3 inches. The registration certificate specifies the name of

the registrant, the date of registration, and the number and address of the local

board with which he is registered. Also inscribed upon it are the date and place

of the registrant's birth, his residence at registration, his physical description,

his signature, and his Selective Service number. The Selective Service number

itself indicates his State of registration, his local board, his year of birth, and

his chronological position in the local board's classification record.

The classification certificate shows the registrant's name, Selective Service

number, signature, and eligibility classification. It specifies whether he was so

classified by his local board, an appeal board, or the President. It contains the

address of his local board and the date the certificate was mailed.

Both the registration and classification certificates bear notices that the

registrant must notify his local board in writing of every change in address,

physical condition, and occupational, marital, family, dependency, and military

status, and of any other fact which might change his classification. Both also

contain a notice that the registrant's Selective Service number should appear on

all communications to his local board.

Congress demonstrated its concern that certificates issued by the Selective

Service System might be abused well before the 1965 Amendment here

challenged. ***

By the 1965 Amendment, Congress added to § 12 (b) (3) of the 1948 Act the

provision here at issue, subjecting to criminal liability not only one who "forges,

alters, or in any manner changes" but also one who "knowingly destroys, [or]

knowingly mutilates" a certificate. We note at the outset that the 1965