Flag Burning and Free Speech: Inside the Classroom with Professor Frederick Schauer

um so we spent Monday talking about O'Brien and what we might call the O'Brien analysis so now it's time to apply it.4 terminological purposes we might want to think of this in terms of tribes taxonomy of track 1 and track 2 we're track 1 is the form of regulation that is directed to communicative impact and track 2 are incidental restrictions on communication as a result of a form of legislation or statute or whatever that's not directed to communicative impact okay so with that said let's spend the little time with Gregory Lee Johnson mr. Johnson as you read burned an American flag and he burned it as a form of protest no question about that no question about what his purpose was no question about what his message was no question about whether the audience understood what he was in the figurative sense saying there was a message the audience understood the message it was the message that he and intended to convey and then the question is under what circumstances if any can he be prosecuted for this so we can start by thinking about Texas's interest here so Texas has a statute as did most states at the time prohibiting the desecration of the American flag but now put aside the statute for a moment and think about what Texas is interest might have been so first of all there is the possibility that it's this is not a possibility it's actually a fact it's dry in Texas it's usually dry in Texas when it's dry in Texas there can be fires so Texas might have said we are very concerned about public burning we are very concerned about the possibility that people who burn things in public can start wildfires so therefore we are enacting a statute prohibiting public burning of anything except with a permit from the Department of the Environment or the Department of Public Safety or the local fire department or something of that variety now if Texas had passed such a statute if that had been the law and if that had been the law and in consequence Johnson was prosecuted for violating the public burning statute it seems as if the first track of O'Brien is not implicated that is Texas has an interest unrelated to the communicative impact of the expression Texas has an interest that would be as easily served or as fully served by prosecuting someone who burned leaves by prosecuting someone who had a bonfire the mere fact that Johnson's burning was a form of protest is inconsequential if that had been the motivation so if it turns out now if that's the lesson of O Brien or at least one lesson of O'Brien the important idea is that that prosecution the permissibility of that prosecution doesn't change even though Johnson protesting even though Johnson was communicating so if he is prosecuted for violating the no public burning statute and he says excuse me I was protesting you don't seem to understand I was not just burning leaves I was not just engaged in some other form of non-communicative or non expression expressive public burning I was protesting I was dissenting I was speaking at least in terms of the basic idea of the O'Brien analysis the response is so what we'll get to the second part in a few minutes but at least the first prong of the O'Brien analysis the the answer is so what as long as the state's interest is unrelated to communicative impact unrelated to the message unrelated to the to the even to the fact that he's communicating the mere fact that he is communicating speaking expressing protesting dissenting rebelling supporting whatever makes no difference at all now two exceptions to this where the this is the presumptive permissibility of prosecuting him under a no public burning statute so exception number one suppose it turns out that there is a no public burning statute and under the no public burning statute Texas prosecutes with some vigor flag burners draft card burners but does not prosecute leaf burners bonfire makers barbecue makers barbecue barbecuers or even those who burn flags enemies of the united states so they they prosecute the barbecue they don't prosecute the barbecuers the leaf burners the communist flag burners they do prosecute the American flag burners if that's the case then to bring you back to con law one you quo versus Hopkins which you may remember becomes highly relevant that is U quo four just to refresh your recollection u quo was the case in which a seemingly neutral law a seemingly even-handed equal applicability law about San Francisco laundries turned out to be applied only against those of Chinese origin and not against anyone else the lesson of y equal which is a hundred and some years ago but is still clearly good law is that we look at the state's motivation we look at the state's goal we look at the state interest not only in terms of what's officially on the face of the statute but also the actual practices of enforcement and a neutral or permissible or legitimate statute can become otherwise if in fact it is enforced or applied in an unconstitutional manner hicoooo was an equal protection case but there is nothing about the basic y equal principle that is restricted to equal protection ikuo could apply to religion it can apply to equal protection and of course it can apply to speech so if it turns out that the the no public burning statute is applied only to American flag burners then it is under you quo as if this statute prohibited burning of the American flag and what might otherwise have been in interest unrelated to communicative impact becomes one because of the actual practice of enforcement so that's first exception second exception so also going back a little bit to con law one suppose that we have a no public burning statute but now there's actual evidence that the Texas Legislature passed it in order to get flag burners that's the issue we talked a little bit about on Monday under what circumstances can a otherwise permissible statute can a statute that's permissible on its face become constitutionally impermissible because it was enacted for an unconstitutional reason the court in O'Brien seems to say that that doesn't matter the Supreme Court in a large number of cases since O'Brien have said in effect yes it does so whether it be Wallis versus Jaffrey about moments of silence at the beginning of a school day or some suggestions in Hunt versus Washington Apple which you may remember from basic con law the existence of an impermissible motivation can render the an otherwise neutral otherwise permissible statute unconstitutional for those of you who didn't encounter Hunt versus Washington Apple in on law one just a brief reminder or introduction as the case may be Hunt versus Washington Apple dealt with a health regulation from North Carolina designed to ensure that all of the apples consumed by North care residents were healthy for consumption there was considerable evidence that this law was enacted not because of a desire to deal with an epidemic of illness caused by tainted apples but rather because it was thought that this would protect the North Carolina apple industry against the evil competition from state of Washington apples and other out-of-state apples the Supreme Court didn't directly say that this itself would be a problem but they strongly hinted that the motivation the protectionist motivation would render unconstitutional what would otherwise be a constitutional law so whether it be a lot of the things that are said in Washington versus Davis or Hunt versus Washington Apple or Wallace versus Jeffery or whatever again if the Texas no public burning statute had been enacted not in order to deal with wildfires not in order to deal with the problem of public burning but to deal with the problem of ideological flag burners then an otherwise constitutional statute might have become unconstitutional okay but this is not the actual statute the actual statute of course was not a public burning statute it was a flag desecration statute so how did Texas attempt to justify the actual statute it had one thing it said and the thing that it stressed mostly was we are enacting this statute preventing the desecration prohibiting the desecration of the American flag in order to prevent breaches of the peace now empirical observation those of you who doubt the empirical basis for Texas's claim can engage in an experiment take an American flag go to the front yard or front area of the nearest veterans of foreign war Post or American Legion Post and burn the flag you will discover a breach of the peace that this this act not only offends but infuriates significant numbers of people as we've seen in other contexts States often sometimes legitimately sometimes as a pretense try to guard or try to protect the speaker in these circumstances or try to protect public order in general in these circumstances so Texas says there is very likely to be a breach of the peace if this happens when people burn the flag lots of other people get really really angry and they can't control themselves in their anger we understand that so in order to prevent these kinds of breaches of the peace we are going to prevent prohibit people from burning the burning the flag from stimulating this kind of breach of the peace now there's an interest thing if you hear talk a little bit about the book talks a little bit about it the court talks a little bit about it in what's now footnote 4 on page 187 so one initial issue is how are we to think about this concern how are we to think about Texas's interest in light of the O'Brien analysis so it is tempting to say preventing breeches of the pre peace is itself and interest unrelated to communicative impact it is perfectly legitimate for the state to prohibit public assaults it is perfectly legitimate for the state to prohibit public disorder perfectly legitimate for this state to prevent all sorts of public disturbances of the kind that commonly go under the rubric of disturbing the peace breach of the peace or something of that sort so it is tempting to say Texas is in and indeed it was very tempting for Texas to say this kind of interest is in fact an interest unrelated to use O'Brien's language unrelated to the suppression of freedom of expression one of the reasons that the O'Brien language is not as useful as the language of unrelated to communicative impact is in these circumstances it might very well be that it's unrelated in terms of primary motivation to freedom of expression that is Texas might have said it is merely a coincidence not a coincidence of our making that people get really really really really angry when others burn the American flag and if they don't get really really really really angry when people burn a communist flag and therefore Texas might say we are not expressing a preference about what form of burning we like or don't like we are merely reflecting the contingent social situation the contingent social landscape in which people engage in breaches of the peace when they see the American flag burned but don't engage in breaches of the peace when they see bonfires or barbecue or burnings of the Communist flag or thing of that variety now if we take O'Brien at its word and say the state motivation has to be unrelated to the suppression of freedom of expression Texas might have a halfway decent arguments the argument becomes less good if we understand O'Brien's somewhat loose phrase as being about in tribes terminology communicative impact that is the breach of peace that exists under this motivation is a breach of the peace that is a function of the content of the communication and indeed if we were to think about Texas's interest as unrelated to contents were unrelated to communicative impact it might be that almost everything that we've done up to now in this course would become irrelevant and that we could do I could do this course as an after-dinner speech rather than a three-hour course so consider Brandenburg for example it might be the case that Ohio said we are not interested in the suppression of freedom of expression we are interested in preventing assaults it's perfectly permissible for us to prohibit assaults our interest in prosecuting Brandenburg in his advocacy of Acts of revengeance against african-americans and Jews is not an interest in preventing him from speaking it is an interest in preventing the targets of Brandenburg speech from engaging in assault and therefore an interest in protecting potential victims from assaults or worse turns out that almost everything that we've done can be characterized in those terms that is if we think it's well and put it somewhat differently those of you who spend a fair amount of time reading common civil libertarian rhetoric will frequently see that the government state or federal is charged with suppressing speech because they don't like the message a common form of civil liberties rhetoric is government shouldn't be allowed to suppress speech just because they disagree with the message or don't like the message that's true but largely irrelevant in almost every situation the government's interest asserted is not an interest in suppressing speech that the government disagrees with is not a an interest in suppressing speech that the government dislikes it is an interest in preventing a consequence of the speech where the consequence can be described in terms unrelated to speech so Ohio didn't say in Brandenburg we don't like we disagree with Brandenburg's message they didn't say that they said instead we want to or they could have said we want to protect people against assault from Brandenburg's fellow clansmen that's not a disagreement with the message nevertheless although it's not a disagreement with the message the entire Brandenburg framework hinges on the fact that a state interest in the consequences of somebody's advocacy where the consequences are a function of the content of the advocacy is squarely in the middle of the basic Brandenburg principle and so to in a vast number of the other cases principles doctrines Maxim's canons and everything else we've talked about and are part of the whole for cement area of First Amendment doctrine so unless Brandenburg is to be overruled unless almost all of the other central features of modern First Amendment doctrine are to be overruled Texas's view that this is unrelated to content can't stand that is Texas's basic principle is we want to protect breaches of against breaches of the peace but as long as the breaches of the peace are a function of the content of somebody else's speech we're not in the unrelated it's a communicative impact range as long as these breaches of the peace would come from a burning of the American flag but would not come from a burning with different content even if it is a burning design to convey a message after all it's plausible that at the end of this course you'll all want to go out and burn the casebook for purposes of sending a message that probably wouldn't cause a breach of the peace in ways that burning an American flag would and as long as the breach of the peace comes from the content of what's said we are within what seems to be the principle about communicative impact so we can put this attempt by Texas aside and then then this comes back we might say if we can reconstruct the dialectic Texas then comes back and says okay you got us that doesn't work that's related to communicative impact but people will be offended by this now of course that's the same idea after Cohen versus California after hustler versus Falwell once again content-based offense no longer suffice us as a legitimate or sufficient First Amendment justification so all of these things don't work and then Texas comes back and says what it really means okay we admit it this is a regulation designed to prohibit certain forms of conduct and our interest is squarely based on the communicative impact of flag-burning nevertheless they say the flag is special and indeed most of the court's opinion in Texas versus Johnson is about the flag is special idea that is about the claim that flag burning is an exception to everything that would otherwise control the outcome in First Amendment terms so they Texas comes back and says okay all of these other arguments are we admit pretenses this is content-based this is viewpoint based we admit its viewpoint based we don't prohibit celebratory uses of the American flag we prohibit desecrating if that's a word that's the secretory uses of the American flag that's clearly viewpoint-based discrimination we are engaged in viewpoint discrimination we admit it but the flag is different and it is at that point that the actual opinions in Texas versus Johnson become most interesting so if you look at the full actual case which is an interesting and important thing to do you will see that the case book authors somewhat dismissive discussion in footnote a on page 191 doesn't capture the full breadth of the Rehnquist majority opinion so what we see in the majority opinion in its full version is the text of the star-spangled banner the text of Barbara Fritchie long recounting of the flag in American history discussions of Betsy Ross discussions of various different kinds of Flags and the purpose that the flag have served and various different celebrations of that that appear in poetry that appear in prose that appear in song and so on now it's easy perhaps too easy for the court or at least the the dissent or there could be the majority easy or perhaps too easy to say none of this really matters but now let's take the Chief Justice's dissent somewhat more seriously here's one way of thinking about what he is saying imagine two different categories so political protests including flag-burning political protest other than flag burning we've got two different categories one way of understanding the majority opinion is to say the relevant category for purposes of thinking about whether this is a political speech case right at the core of the First Amendment is the first category Chief Justice Rehnquist's the elephant way of thinking about the category is the second category and then the question is which is the right way of thinking about this and one of the interesting irony of these two opinions is that it is the majority opinion that looks traditional and the dissent that we might that we might characterize as postmodern so let me explain a little bit so one way of understanding post-modernism in art in literature and a whole bunch of other things is as a recognition that all of our language all of our categories all of our ability to understand is socially constructed that's a two sentence summary of what lots of people have devoted their whole lives to but put that aside that at least postmodern perspectives focus on the social construction of language the social construction of our categories and therefore I'm the ultimate contingency of our categories and therefore on the ultimate non groundedness of our categories in anything other than contingent changeable variable could have been otherwise implicit social decisions and post modernists think that they are reacting against a pre post modernist whether that be modernist or pre modernist or whatever reacting against a pre post modernist world in which people thought that our categories our language our words were in some way natural in some way firmly rooted in something that's unchangeable in some way fixed by the nature of the universe and if you understand that two minute summary of what as I said lots of people have devoted their lives to arguing about in an intriguing way it is the majority opinion that's pre post modernist and the dissent that's post modernist that is Chief Justice Rehnquist is saying there is no natural reason why the category should be number one rather than number two it is the category of political speak which is defined by the society in which it takes place and the category of political speech in the United States as we know from the history as we know from the poems and songs and everything else the category of the political speech in the United States doesn't include flag-burning the majority says in effect the category of political speech must include flag-burning there is no social contingency involved that's just what political speech is the irony of course is that at least for many people post-modernism the contingency of categories and everything else broadly speaking is associated with the political left and pre post-modernism broadly and loosely speaking the belief in the non contingency of categories is associated with the right and lo and behold in Texas versus Johnson it looks as if justice is commonly associated with the left of center are adopting the traditional categories are natural things position and the justice is more commonly associated with the political right are the ones who are the post modernists indeed in this context think for example or think about the fact that in Germany it is illegal to display Nazi regalia it is illegal to form a political party that in any way resembles the National Socialist Party Frank Collin and his American Nazis could not exist as a political party in Germany although they exist as a political orator didn't exist as a political party in the United States or a political organization in the United States if you ask most Germans or many Germans about how they can exclude Nazis from the category of political speech political debate and political arguments you're likely to get some version of a what are you talking about response that is given the history it is not at all surprising that in Germany Nazis are not considered just another political party not just another political organization they consist of an entirely different category in the concept in the historically determined conceptual apparatus of German politics and German political debate Nazis stand aside from everything else and if that sounds somewhat sensible as I described Germany then that's what Chief Justice Rehnquist is saying about the United States here that just as Nazis are an entirely separate category in Germany flag-burning is an entirely separate category in the United States now you could agree with this or disagree with this certainly there are strong arguments to suggest that at least as political protest is understood in the United States especially as it's been understood since the early 1960s there ought not to be anything regardless of its historical origins that's outside the category but this is a the debate between the majority and the dissent is really a debate about categorization it's a debate about the nature of the category to which all of this applies and of course as you read the majority prevails well I guess that's tautological the majority prevails that's what makes it a majority but for reasons that now should be somewhat familiar to you that is this is an argument that is undeniably based on the uncommunicative that impact the majority says because it's based on communicative impact implicitly this is strict scrutiny and none of Texas's justifications including this one are enough okay so a little bit of subsequent history now subsequent to Texas versus Johnson that raises some interesting and important issues not only just about the First Amendment but about American political culture in general so you read United States versus Eichmann dealing with the flag protection act of 1989 that doesn't give you a full flavor of what actually happened it will not surprise you that Texas versus Johnson was not a popular opinion in the United States in general it was there had been previous flag desecration opinions from the Supreme Court but most of them had skirted the issue there were many of them for example went off on vagueness grounds so back in the 1960s a young man named Valeri Gaughan GOG UEN decided to express his objections to the Vietnam War his objections to the Selective Service System in ways that were somewhat related to Paul Cohen message but mr. Gogi decided that what he was going to do was taken American flag and sew it to the butt of his blue jeans and he walked around with the American flag on the butt of his blue jeans that attracted the attention of the authorities he was prosecuted under a flag desecration statute but eventually got to the Supreme Court which went off on vagueness grounds the statute is unconstitutionally vague by characterizing the prohibited conduct in terms of casting contempt on the flag there was another case called Street versus New York there were a few others they were all vagueness cases Texas versus Johnson was the first one to directly confront the issue although given the outcome of the vagueness cases not that many people were surprised not that many people were surprised but lots of people were outraged so shortly thereafter there is introduced in Congress the flag Protection Act of 1989 it passed by a vote in the Senate of 91 to 9 it passed in the House of Representatives by a vote of 380 to 38 this is interesting even apart from First Amendment considerations that is if you add the two together 471 members of Congress voted for a bill almost certain to be declared unconstitutional that is this did not happen 20 years after Texas versus Johnson this happened in a matter of weeks or months after Texas versus Johnson no there was no change in the personnel of the Supreme Court every one of those 471 members of Congress who voted for this bill knew that the bill that they had voted for was going to be struck down by Supreme Court there is a couple of people made the argument that Congress might be able to do things that the state can't do but certainly at the time that arguments did not get any support in the existing First Amendment doctrine indeed in the first of the important obscenity cases Roth versus the United States Justice Harlan had suggested that maybe the First Amendment means different things for purposes of state regulation than for purposes of federal regulation no other justice joined that position nothing in the intervening period between Roth in 1957 and Texas versus Johnson in 1989 suggested that there would be any difference that is once the First Amendment was incorporated in the fourteenth the incorporation treated state and federal regulation of speech as identical everybody knew this in 1989 and as a result none of the 471 members of Congress unless they were delusional believed that this statute had any possibility of being upheld by the Supreme Court and as you read it wasn't now now we can think a little bit politically about this about the Aikman decision striking down the flag Protection Act of 1989 largely on the authority of Texas versus Johnson so here's a quiz or at least the question to ask yourself what do you think happened to the 471 people who voted for a law almost certain to be declared unconstitutional mr. Gil okay do you think anybody would do you think do you think it had a political negative for any of these 471 people spared was that a good right so it's that is the burden of proof is mr. Baird says would have been on those who voted against it as mr. Gill says the expectation is that voting for a law almost certain to be declared unconstitutional would have more likely generated applause or Pat's on the back rather than contempt so this is a this is relevant here but it's also relevant to the somewhat larger issue is voting for a law likely to be declared unconstitutional or is voting for a law in direct repudiation of a Supreme Court opinion a political negative for that reason that is we want to be precise here is it a bad thing politically to challenge the ruling of the Supreme Court Texas versus Johnson would seem except me uh the flag Protection Act would seem to suggest that the answer to that is no that is that all of the work is being done by the substance and none of the work is being done by the fact of obedience to the Supreme Court independent of anything else indeed there's some support for this from an event that took place in 1988 in 1988 when Michael Dukakis was running against George Bush senior for the presidency the one of the issues that came up in the political campaign was why Dukakis who was at the when he was governor of Massachusetts had vetoed a bill requiring schoolteachers in Massachusetts to conduct the Pledge of Allegiance at the beginning of every school day Dukakis responded by saying I vetoed the bill because it was unconstitutional under the Supreme Court decision of West Virginia Board of Education versus Barnette in 1942 or 1943 this was widely understood to be a political gaffe of monumental proportions that is that defending a political act because of a Supreme Court decision was widely understood to demonstrate dukakis's incompetence as a potential president even by people who thought that he ought to be President that is even his supporters thought that this was a wildly inappropriate defense of what he had done further possibly reinforcing the view that obedience the law as obedience to law or more narrowly obedience to the Supreme Court as obedience to the Supreme Court doesn't have a any particular amount of political purchase but let's not exclude the Supreme Court from this question as well one of the other interesting things about Eichmann is the alignment of the justices is exactly the same as it was in Texas versus Johnson that's curious that is if you believed everything that you learned when you were learning about legal method in the first year you what you should be it you should have predicted that Eichmann would be a 9 nothing decision that is one of the things you learned is that courts adopt a norm of starry decisis stand by what is decided that doctrines of precedent in general are important starry decisis is the doctrine that requires a court to follow previous decisions of the same court and requires judges of that court to obey previous decisions of that court even if they thought they were wrong after all if they thought they were right starry decisis makes no difference whatsoever so the the whole bite of a principle of starry decisis is saying even if you think a decision is wrong you have some obligation to follow a previous decision even one you thought was wrong none of the four dissenting justices in Eichmann seem to believe in that principle indeed that somewhat consistent with the larger view that however much we talk about starry decisis in the Supreme Court it operates as a at best minor constraints or maybe non constraints group of political scientists who write who do political science research on Supreme Court decision making wrote a book about ten years ago called tellingly starry in decisis that is the carefully an ALICE of Supreme Court decisions over a 20 or 30 year period indicated that the willingness of justices to take previous decisions as reasons for making a decision that they disagreed with was very very very small and indeed in Eichmann we also have the somewhat narrower but related idea that we might call persistent dissent dissenters keep the same thing there are occasional exceptions to this justice white for example who obviously didn't take that view in this case used to take that view with some frequency in Criminal Procedure cases that is he would say I was at the center in this case Miranda for example but that view has not prevailed so I will now treat this as the law that occasionally happens but it's not very common the phenomenon have persistent the this persistent dissent is far more common we see that here indeed it's if we look for embodiments of this debate in general one of the more interesting articulations of what seems to be the actual fact comes from justice scalia who it turns out was in the majority in Texas versus Johnson but Justice Scalia has said explicitly and proudly I do not believe in the principle of sorry decisis in the Supreme Court his justifications which will take us a little bit far afield here are basically I took an oath to support and uphold the Constitution I did not take an oath to support and uphold what previous occupants of my office have said the Constitution says and not surprisingly he expresses this position with somewhat more panache than others might express it or with somewhat more Verve than others might express it but the view that he expresses and is willing to say may reflect a fair amount of what most justices have believed most of the time so but the dissenters in Eichmann although they are the same as the dissenters in Johnson still are dissenters Eichmann strikes down the flag Protection Act one other thing that might be said about this whole series of events shortly after Texas versus Johnson and shortly after Eichmann and more or less every two years ever since then bills have been introduced in Congress to amend the Constitution with an amendment saying Congress shall have the power to prohibit the physical desecration of the flag amendments get a majority in the house a majority in the Senate but they have never gotten the two-thirds of both houses necessary to send them to the states that at least when it comes to amending the Constitution the politics may be a little bit different that is when it comes to amending the Constitution voting for an amendment to the Constitution looks like it's slightly politically riskier then voting for the flag Protection Act even if it is an amendment to the Constitution that would allow what the majority of members of Congress and the overwhelming majority of the population would like to see as a matter of first-order substance but amending the Constitution which does as you know doesn't happen very much is itself a politically risky act it's also a politically very difficult act once you get into the states it turns out that 13 states have the ability to defeat a constitutional amendment the 13 smallest states have the ability to defeat a constitutional amendment most states have supermajority rules about voting for constitutional amendments and once we understand that they have super majority rules the consequence of this is that a significant minority of the legislators in the smallest 13 states in the United States can defeat a constitutional amendment there are people there are people who have done the math on this I have not but it turns out that state representatives representing something like four or five hundred thousand people can defeat a constitutional amendment if all of the mathematics are aligned so it looks like a feudal act even from the beginning but it also looks like a more politically dangerous act especially more politically dangerous to do something that's a matter of significant substance since the 14th amendment most constitutional amendments have been with the exception of extent of the ones dealing with voting and gender and age and race but almost all of the other constitutional amendments have been perceived as procedural and technical we don't amend the Constitution for better or for worse moreover it also turns out that many members of Congress perceive that voting for an amendment to the first amendment would be particularly politically risky after all the first amendment has some powerful defenders I never argue with the fellow who buys ink by the barrel adage that goes back about a hundred years is relevant here politicians understand that they annoy the press at their peril the press gets the last word the press is a not unbiased commentator on First Amendment issues so amending the First Amendment is thought to be even riskier lots of people believe that the First Amendment was first for a reason that turns out to be false as I've mentioned it was originally adopted as the third the first two didn't get the requisite number of votes so the third amendment became the first nevertheless 200 years of rhetoric have talked about the first Miss of the First Amendment okay so we have not yet amended and probably will not in the Constitution to reverse Texas versus Johnson so a little bit now about track 2 so suppose that and maybe the best way to talk about track 2 is to talk about it initially in the context of a hypothetical Texas versus Johnson suppose that Gregory Lee Johnson had burned his flag suppose he had been prosecuted under a no public burning ordinance and suppose that he was unable to make a showing under either you or the impermissible intent branch that is suppose he was prosecuted under a no public burning statute under circumstances in which barbecuers leaf burners and large bonfire builders and large number of others were also prosecuted he comes back and says ok I understand that I cannot win under track one of the O'Brien analysis the state's interest is unrelated to communicative impact but nevertheless O'Brien seems to say that even incidental restrictions on communication incidental restrictions on speech restrictions on speech that are incidental to a law of general application still get some form of heightened scrutiny I am entitled because I was engaged in expression and nobody denies that I am entitled because I was protesting and dissenting to require the state to justify what they are doing by something better than a rational basis and I am entitled to have the court weigh the degree of the state interest against the importance of my protest in an even-handed weighing method somewhat like castle versus consolidated Freightways and so on that's what O'Brien seems to suggest in terms of this track to that's what O'Brien seems to be saying when it says the state restriction should be no greater than necessary so it is against that background that we get to Clark versus the community for creative non-violence so here we have the ideological sleepers the the sleepers in Clark we're not sleeping because they were tired they were not sleeping because they had nothing else to do they were sleeping in order to make a political point so those of you who are now sleeping might be thinking I might observe you sleeping in class but actually it's a protest against the content of the class and given that this is a First Amendment class you are entitled to sleep as a form of protest against the content that's what was going on in Clark these were ideologue sleepers but the ideological sleepers turned out to violate a genuinely even-handed law of of genja of general application that is they could not make the case that they were singled out because they were protesting if you sleep in one in one of the parks in the District of Columbia that has no there's no camping or no sleeping regulations you will be evicted or prosecuted without regard to content without regard to anything else if you have no place to say stay or if you're sleepy or for any other reason if you do what they did you're you're going to be prosecuted so the fact that they did it as a form of protest was genuinely incidental so what's interesting about Clark and what's maybe most important about Clark is that the form of scrutiny that the court seems to apply doesn't look anything like even-handed balancing it looks like total rational basis you don't have a complaint at all in these circumstances because this is an even-handed law of general application now one thing that we might say about that and one thing that we might ask about that so the thing we might set were that I might say about it is that one reason for this one reason for the courts result is that if we take track too seriously it's hard to imagine any law that would not generate some degree of at least close judicial scrutiny so after all if you go to by the New York Times at the local newsstand here you don't pay $2 you pay $2 + Virginia sales tax so suppose someone says yes we recognize that there is a Virginia sales tax on clothes sporting equipment automobiles and everything else it's a law of general application but by applying this law of general application to newspapers this has an effect on the sale and distribution of newspapers after all we all understand our economics 1 you raise the price of something it lowers it has an effect on the market so by taxing newspapers we inhibit and reduce the distribution of newspapers we inhibit and this distribute we inhibit and reduce the distribution of news and political commentary and under track 2 of the O'Brien analysis a court should evaluate the degree of the state interest against the in the expressive interests and the amount of expression or the amount of speech involved we could say this about almost anything after all this same copy of the New York Times I'm not sure where it's printed in these days of electronic printing for all I know it's printed in Charlottesville but it's probably printed in Richmond that the content is sent to Richmond electronically they pretty I'm guessing here the printing presses of the Richmond newspapers are used - also they rent out space to the New York Times The New York Times gets printed there it then gets put on a truck where it comes from Richmond to Charlottesville if it comes from Richmond to Charlottesville in obedience of the speed limit it will not get here as quickly as if it comes from Richmond to Charlottesville at 90 miles an hour as a result news and information that would otherwise be here at such-and-such a time is delayed because of the speed limits on Interstate 64 there's almost no regulation there is almost no law there's almost no state policy that is not going to have at least some effect on communication if we take the O'Brien analysis track to seriously almost every law would have to get some close judicial scrutiny maybe that's why the court says sort of consistently with Washington versus Davis a much more controversial opinion where the effect is merely incidental to an entirely innocent law of general application we're not going to look very carefully at all and the language in O'Brien about least restrictive alternatives or balancing or whatever should not be taken too seriously now there is a question sleeping is not a common form of political protest it's not a frequent form of communication it's a frequent human activity but it's not a frequent form of human communication there is a question still unanswered in the doctrine about whether track 2 of the O'Brien analysis has more bite to it when it is applied to traditional forms of communication then when it is applied the untraditional forms of communication such as for example sleeping so here's another example any cigar smokers here none okay well let's suppose that some of us were cigar smokers even though none of us are cigar smokers if some of us were cigar smokers we would likely I hear from people I know who smoke cigars that appreciate them we would likely feel burdened by the fact that under various 1960s era import regulations one cannot buy Cuban cigars in the United States however much people want Cuban cigars however much Cuban cigars are better than other kinds of cigars you cannot legally buy Cuban cigars in the United States it also turns out you can't buy Cuban books in the United States but you can't buy Cuban books in the United States for exactly the same reason you can't buy Cuban cigars in the United States there is a law of general application prohibiting the purchase or import with some exceptions but not very many of Cuban products so you can't buy Cuban cigars you can't buy Cuban food you can't buy Cuban clothing you can't buy Cuban books suppose there's then a challenge to the application of this law of general application to books there are now some exceptions to the law that I've just described making a challenge somewhat less likely but the question would be remain still unanswered is the application of this law of general application to books obviously a consummate First Amendment item one that would be tested against somewhat more rigorous scrutiny than the application of a law of general application to ideological sleepers is there a book sleep distinction that tracks the distinction between traditional and non-traditional forms of communication when we are dealing with newspapers or books or something of that variety it does track two of the O'Brien analysis actually means something when it is clear that if we're dealing as from community for creative non-violence when we are dealing with non-traditional forms of communication it means nothing at all okay let's leave it at this for those of you who are here on Monday and Wednesday don't come to class and I will see you a week from Monday but here's an informal assignment that is highly relevant to what we will be doing the Monday and Wednesday after we get back spend more time than you normally would not on sleeping your it's okay to do that so spend more time than you normally would reading about the wall street protests because almost all of the Wall Street protests even before yesterday totally implicate the question of what's a public forum and what can you do in streets parks and sidewalks and the form of the wall street protests of yesterday that is the organized march through the houses of billionaires and picketing in front of billionaires houses raises another issue about private picketing and the like or picket in your private residences so the wall street protests are highly relevant to what we are about to do and if by a week from Monday you're at least somewhat aware of the nature of the non legal issues that will make the understanding and application of the legal ones better have a good break

Channel: University of Virginia School of Law

Views: 9,728

Rating: 4.9459457 out of 5

Keywords: law, school, university, virginia, uva, school of law, schauer, first amendment, flag burning, law school, constitutional law, freedom of speech

Id: ilXSAKpqFVI

Length: 72min 49sec (4369 seconds)

Published: Fri Nov 11 2011