Political Expression: "F**k the Draft" and Flag Burning

Facts of the Case

Congress amended the Universal Military Training and Service Act (Selective Service Act) in 1965 to prevent people from intentionally destroying draft cards, which contained information on registrants for the draft such as their Selective Service numbers. This likely was a response to the frequent public burnings of draft cards as a form of protest during the Vietnam War.

David O'Brien and three other young men publicly burned their draft cards on the steps of the South Boston Courthouse on March 31, 1966. The observers of this protest included FBI agents, one of whom took O'Brien inside the courthouse when some of the spectators began to attack the draft burners. Since O'Brien acknowledged his actions and showed the burned card to the agent, he was charged with violating the provision against destroying draft cards. He used his trial as a vehicle to convey his anti-war views to the public and argue that banning the burning of draft cards infringed on free speech. However, O'Brien was convicted and sentenced to six years of custody as a youth offender.

Question

Was the law an unconstitutional infringement of O'Brien's freedom of speech?

Opinions

Majority (7): 

Finding that a statute could be constitutional even if the motive in passing it was improper, such as quelling protest, Warren showed deference to the legislature in the sphere of military service. He observed that the law covered conduct rather than speech, which meant that the Court should review it more leniently. Expressive conduct that has a symbolic meaning still may be protected by the First Amendment, but the standard of review requires only an important governmental interest that is content-neutral, is not independently unconstitutional, and does not infringe on more speech than is needed to pursue the government's interest. Technically, this section of the opinion may not have had precedential value, for Warren was unsure whether O'Brien's actions even qualified as expressive conduct. But this became the standard used to evaluate First Amendment challenges on such a basis moving forward.

Warren was not persuaded that the draft cards were arbitrary, unnecessary pieces of paperwork that served no practical purpose. He felt that they helped the draft process function more smoothly and that Congress should have substantial discretion in the measures that it took to facilitate raising an army. O'Brien was free to verbally criticize the use of draft cards, but burning them directly frustrated the government's interest in keeping draft cards available. The government had no meaningful alternative way to assure their continued use if they were destroyed.

In an extension to the majority's standard, Harlan argued that the First Amendment should cover situations when a law entirely prevented a speaker from reaching a significant audience by denying the speaker any other lawful means of communication. This was clearly not O'Brien's situation, so it was not relevant to the outcome in this case. However, later decisions would adopt Harlan's concern that ample alternative channels of communication must exist.

Minority (1)

Case Commentary 

This was one of the earliest occasions on which the Court considered symbolic speech or expressive conduct under the First Amendment. It receives constitutional protections as well, but usually the government action affecting it must meet a lower burden of proof to be valid.

Ironically, this decision had minimal effect on the burning of draft cards, which continued to be a popular form of public protest. This is no longer the case, however, and the provision banning this conduct remains in effect. The Selective Service Act has sustained most challenges to other provisions, and males between 18 and 25 are required to register in the event that there may be a draft.

The "intermediate scrutiny" standard used in O'Brien was narrowed somewhat in other cases that examined whether the alleged government interest justified the scope of the restriction on expressive conduct. In case such as Texas v. Johnson (1989), for example, the Court found that the First Amendment protected burning the American flag, which does not seem far removed from burning a draft card. On the other hand, the Court has required only a reasonable connection between the government interest and the means used to further it. Cases that apply intermediate scrutiny, which also includes review of time, place, and manner restrictions, continue to be unpredictable.

Facts of the Case

Section 415 of the California Penal Code prohibited citizens from maliciously and willfully disturbing the peace of any individual or community through offensive conduct. Paul Robert Cohen was charged with violating this law after he wore a jacket that said "F--- the Draft" in a corridor of the Los Angeles Courthouse, near division 20. Cohen was convicted and sentenced to 30 days in jail. The state appellate court sustained the conviction, finding that the statute could be applied to individuals who act in a way that has a tendency to provoke violence or, generally speaking, disturb the peace.

Question

Did California's statute, prohibiting the display of offensive messages such as "Fuck the Draft," violate freedom of expression as protected by the First Amendment?

Opinions

Majority (5):

Harlan based the majority opinion on a vision of the First Amendment as protecting the marketplace of ideas, even if they might be vulgarly expressed at times. He argued that the slogan on the shirt should be evaluated as speech rather than expressive conduct, thus triggering a higher standard of review. Finding that no categorical exception to First Amendment protection applied, Harlan stated that the slogan was not obscene (despite the expletive) or a "fighting word" because it was not directly targeted at anyone in the vicinity. He found that the statute was overly vague in describing the conduct that it prohibited and that virtually any statute that criminalized the slogan on the shirt would be unconstitutional, except for time, place, and manner restrictions unrelated to content.

Minority (4):  Disagreeing with the majority's classification of the slogan on the shirt as speech, Blackmun found that it should be categorized as conduct, which would trigger a lower standard of review. He also noted a recent California Supreme Court case that had interpreted the statute at issue, which he felt made reconsideration at the state appellate level necessary before the Supreme Court heard the case.

Case Commentary

Speech that is distasteful or upsetting to some members of the public is not enough to remove First Amendment protections and subject the speaker to criminal prosecution. The goal of fostering a marketplace of ideas requires permitting a diversity of viewpoints and modes of expression. There was no evidence that the slogan was intended to incite violence or harm a target, and a substantial sector of the population likely would not be offended by it.

Facts of the Case

During a political demonstration in Dallas, Texas, Gregory ("Joey") Johnson gained possession of an American flag. The Revolutionary Communist Youth Brigade, to which he belonged, was vociferously protesting the policies of Ronald Reagan and certain corporations. The demonstration coincided with the Republican National Convention held in the city. At City Hall, Johnson poured kerosene on the flag and burned it as his fellow members chanted slogans that attacked the presidential candidates and the U.S. in general. Many onlookers were offended, although nobody was physically injured. Johnson was convicted of desecrating a venerated object under state law and sentenced to one year in prison as well as a fine.

Question

Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

Opinions

Majority (7): 

Echoing precedents such as O'Brien v. U.S., Cohen v. California, and Tinker v. Des Moines, the majority reaffirmed that the First Amendment protects expressive conduct. To determine the line between mere action and communication, Brennan suggested that courts should consider whether the defendant intended to convey a specific message through the conduct, and whether it was likely that the audience would recognize this message for what it was. In this situation, he felt that both elements were satisfied. The demonstration coincided with the Republican National Convention, and the accompanying political chants clarified the message.

The defendant's conduct thus could be punished only if the state could show that it had a compelling content-neutral reason for suppressing it. Brennan found that there was no breach of the peace or imminent threat of such a breach that resulted from the flag burning, and he rejected the bad tendency test from early 20th-century jurisprudence. The state could not propose any other compelling interest, and in fact it is possible that no other interest could be proposed.

Minority (2):  

While he shared the majority's respect for the First Amendment, Rehnquist thought that flag burning was a sufficiently unique and popularly reprehensible activity to justify making an exception to its protections. He argued that it did not express a meaningful message but was meant to provoke others. Rehnquist pointed out that people who burn flags have many other forms of speech and expressive conduct with which to deliver the same message.

Noting the difference between expressing an opinion and the means by which the opinion is expressed, Stevens agreed with Rehnquist that the defendant had other ways to convey his disapproval of contemporary politics. However, his opinion was more like Kennedy's concurrence in the sense that it was built more on evocative rhetoric than doctrinal analysis.

Case Commentary

This is an example of the symbolic speech, or expressive conduct, to which a lesser degree of First Amendment protections extend. Flag burning is still a divisive issue, even though Johnson struck down laws banning it across 48 states. Studies suggest that the majority of Americans believe that it should be illegal.

The federal Flag Protection Act of 1989 also made the conduct a federal crime, but this law was invalidated almost immediately in an opinion also written by Brennan and joined by the same group of Justices. Attempts by Congress to amend the Constitution to prohibit flag burning have succeeded in the House of Representatives but failed to pass in the Senate.