Flashcards in Emily's notes: Expressive Conduct and the Court Deck (18):
How does the court decide if the conduct is expressive?
Is the conduct expressive?
Is the government regulation directly related to the suppression of expression?
Is there an intent to express a message?
Is there a likelihood the message will be understood by witnesses?
Is the regulation aimed at suppressing speech?
Yes = strict scrutiny to determine if regulation is constitutional
No = intermediate scrutiny might be constitutional, might not be
What is strict scrutiny?
- Does the regulation advance a compelling government interest?
- Is the regulation necessary and narrowly tailored?
What is intermediate scrutiny (The O'Brien Test)?
- Is the government regulation within the constitutional power of the government?
- Does the regulation advance an important or substantial government interest?
- Is the expressed interest unrelated to the suppression of free expression?
- Is the incidental restriction of expression no greater than necessary to further the government interest?
What is the background behind Texas v. Johnson (1989)?
After publicly burning the American flag, the Defendant, Gregory Lee Johnson (Defendant), was convicted of desecrating a flag in violation of Texas law. The Court of Criminal Appeals overturned the conviction.
What is the issue behind Texas v. Johnson?
Whether Defendant’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment of the United States Constitution (Constitution)?
Whether the state’s interest in preserving the flag as a symbol of nationhood justifies Defendant’s conviction?
Texas expressed two governmental interests in prohibiting flag burning
- the prevention of a breach of peace
- preserving the flag as a symbol of nationhood and national unity
What was the outcome of Texas v. Johnson?
Yes. Judgment of the Court of Criminal Appeals affirmed. The very purpose of a national flag is to serve as a symbol of our country. Pregnant with expressive content, the flag as readily signifies this nation as does the combination of letters found in “America.” Texas conceded that Defendant’s conduct was expressive conduct. He burned the flag as part of a political demonstration. Therefore, Defendant’s burning of the flag constituted expressive conduct thereby permitting him to invoke the First Amendment of the Constitution.
No. Judgment of the Court of Criminal Appeals affirmed. The state’s restriction on Defendant’s expression is content-based. Therefore, the state’s asserted interest in preserving the special symbolic character of the flag must be subjected to the “most exacting scrutiny.” To say that the Government has an interest in encouraging proper treatment of the flag is not to say that it may criminally punish a person for burning the flag as a means of political protest. Therefore, the state’s interest in preserving the flag as a symbol of nationhood does not justify Defendant’s conviction because it is not consistent with the First Amendment of the Constitution.
Does Texas v. Johnson involve strict scrutiny? (Use the test).
Prevention of a breach of the peace
Does the government have the constitutional power to regulate activity that might breach the peace? Yes.
Does the regulation further an important or substantial government interest? Yes
Is the interest in maintaining the peace unrelated to the suppression of expressi
Is the incidental restriction of free expression no greater than is essential to the furtherance of the stated interested? No.
Preserving the flag as a symbol of national unity
Is that interest directly related?…Yes.
Yes = strict scrutiny
Is there a compelling government interest?
Is the regulation necessary and narrowly tailored to advance that interest?...No.
What is the background behind Cohen v. California (1971)?
The Defendant was convicted under a California law for wearing a jacket that had on it, “F— the draft” outside the municipal courthouse during the Vietnam War. The Defendant did not threaten or engage in any act of violence. The state court affirmed his conviction holding that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace.”
What was the issue behind Cohen v. California?
Whether California can excise, as “offensive conduct,” one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reactions or upon a more general assertion that the states, acting as guardians of the public morality, may properly remove this offensive word from the public vocabulary?
What was the outcome of Cohen v. California?
No. Judgment of the lower courts reversed. Defendant’s speech is protected by the First Amendment of the United States Constitution (Constitution). The only conviction that the state sought to punish was communication. Thus, this case rests solely upon “speech.” The state lacks power to punish Defendant for the content of his message because he showed no intent to incite disobedience to the draft. Thus, his conviction rests upon his exercise of the “freedom of speech” and can only be justified as a valid regulation of the manner in which he exercised that freedom. This is not an obscenity case because his message is not erotic. This case does not involve “fighting words” because his message is not directed at another person. Further, the public is free to avert their eyes from the distasteful message. His message constitutes emotive speech because it seeks to get our attention. This speech is protected by the First Amendment of the Constitution. Therefore, his conviction must be overturned.
Justice John Marshall Harlan – words have emotive effect as well as communicative
What is the background behind Chaplinksy v. New Hampshire (1942)?
A New Hampshire statute prohibited any person from addressing any offensive, derisive or annoying word to any other person who is on any street or public place or calling him by any derisive name. Chaplinsky, a Jehovah’s Witness, called a City Marshal a “God damned racketeer” and a “damned fascist” in a public place and was therefore arrested and convicted under the statute.
What was the issue behind Chaplinsky v. New Hampshire?
Did the statute or the application of the statute to Chaplinsky’s comments violate his free speech rights under the First Amendment of the Constitution?
What was the outcome of Chaplinsky v. New Hampshire?
No. The lower court is affirmed.
Considering the purpose of the First Amendment of the Constitution, it is obvious that the right to free speech is not absolute under all circumstances. There are some narrowly defined classes of speech that have never been protected by the First Amendment of the Constitution. These include “fighting words,” words that inflict injury or tend to excite an immediate breach of the peace. Such words are of such little expositional or social value that any benefit they might produce is far outweighed by their costs on social interests in order and morality.
The statute at issue is narrowly drawn to define and punish specific conduct lying within the domain of government power. Moreover, the Supreme Court of New Hampshire, which is the ultimate arbiter of the meanings of New Hampshire law, has defined the Statute as applying only to “fighting words”. Therefore, the Statute does not unconstitutionally impinge upon the right of free speech.
Fighting words “are no essential part of any expression of ideas” and are of slight social value
Was Virginia v. Black (2003) the original name of the case?
-Commonwealth v. Black
-Black v. Commonwealth
-Virginia v. Black
What is the background of Virginia v. Black?
Black (D) was prosecuted because of burning a cross, and convicted of the same by a jury, under the cross-burning statute of Virginia (P) which bans cross burning with the object of creating fear in a person or a group. Such an action is taken to be evidence, prima facie, of such an intention, under a section of the law. The Virginia Supreme Court upheld the decision and Black (D) appealed.
What was the issue behind Virginia v. Black?
Is the provision in this or any other state’s cross-burning statute unconstitutional in viewing any such incident as prima facie evidence of having an intention to create fear in, or a threat to another person or group?