NonSpeech

1

• Non-Speech
• April 21, 2005

2
US v. OBrien (1968)

• Non-speech or anti-speech?
• Does 50 USC 462 regulate
• draft registration, or
• draft opposition

conduct
speech
major 1st am problem
minor 1st am problem
3
US v. OBrien (1968)

• Can burning a draft card be speech?
• Symbolic speech
• What level of protection afforded?
• depends on level of expressive category
• Is all regulation of sym speech anti-speech
• No, regulation may be aimed at the non-speech
  element of the mixed activity
• Assassination is the extreme form of censorship
• George Bernard Shaw

4
US v. OBrien (1968)
ENDS analysis

• OBrien test for regulation of symb. speech
• Is the regulation w/in governments power?
• Does it further an important govtl interest?
• Is the interest unrelated to suppression of
  speech?
• Is the incidental restriction on speech any
  greater than necessary to further the govt
  interest?

this step performs a switching function in that
it determines standard of review
MEANS analysis
The std of review appears to be mid-level, but
SupCt was very deferential in OBrien
5
US v. OBrien (1968)

• Switching function in OBrien
• Is the interest unrelated to suppression of
  speech?
• Objective or subjective test
• Objective can Court conceive of a non-speech
  purpose?
• Subjective purpose of legislature?
• Any doubt with this 1965 amendment to the 1948
  SSS?
• By using objective test, Court lessens the actual
  protection given to symbolic speech
• Switching function analysis is RB
• If regulation is non-speech, then also RB

6
Texas v. Johnson (1989)
7
Texas v. Johnson (1989)

• Is burning the flag symbolic speech?
• Is the Texas law directed at the speech or
  non-speech element of this mixed act?
• Burning in public?
• Prosecuted for desecration of venerated object
• Preventing breach of the peace?
• Note this can be seen as an expressive
  component, yet one that is unprotected (fighting
  words)
• Protecting flag as symbol of national unity?
• This is a speech act
• Switching function -gt go to level of scrutiny
  appropriate for this category of speech

8
Texas v. Johnson (1989)

• Strict scrutiny for suppression of political
  speech
• Compelling government interest
• Preserving national unity
• Through orthodoxy of thought expression
• Alternative means of expression
• Should scrutiny be reduced because Johnson had
  other ways of conveying same message?
• Is it ok to prohibit effective communication, if
  less effective means remain available?