Of Conduct, Content, and Categories

Author:Ruthann Robson
Pages:88-156
 
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Robson The First Amendment
88
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
89
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
Robson The First Amendment
90
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

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