Chapter 15. PROTECTION OF PENUMBRAL FIRST AMENDMENT RIGHTS

1. Symbolic Speech

• For what conduct was O'Brien prosecuted? Was it "speech"?
• was O'Brien intending to communicate an idea through his conduct?
• does it help to ask whether particular conduct is "predominantly speech" or "predominantly conduct"?
• what was the significance to O'Brien's message, if any, of the fact that his conduct was illegal? if it was significant, does that affect the constitutionality of his prosecution?
• What was the government's purpose in prohibiting that conduct?
• was it aiming at O'Brien's message?
• was it aiming at the physical integrity of the draft card?
• how do we know what the purpose was?
• Was the prohibition broader, in relation to speech, than was necessary to accomplish the government's purpose?

• Street v. New York (1969):"publicly mutilating, defacing, defiling or defying, trampling on or casting contempt on any flag of the United States" -- the specific charge against Street recited the words he spoke while burning, as contemptuous
• Smith v. Goguen (1972): "treat contemptuously the flag"
• Spence v. Washington (1974): display of any U.S. or state flag with any "word, figure, mark, picture, design, drawing or advertisement of any nature"
• TEXAS V. JOHNSON, p. 1439 (1989): "deface, damage, or otherwise physically mistreat [a state or national flag] in any way that the actor knows will seriously offend one or more persons likely to observe or discover his action."
• United States v. Eichman, p. 1444 (1990): federal statute: "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States"
• In terms of the O'Brien test, what is the problem with all of these attempts? Can you think of a way around the problem?

• how does this case differ from Barnes?
• are the Justices able to clarify their positions? find a majority for analytical purposes?
• does the Court have sufficient evidence before it to render a final decision (Souter)?