Amdt1.2.12.2.2 Symbolic Speech: Current Doctrine

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

United States v. O’Brien1 affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O’Brien had publicly burned his draft card. We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.2 Finding that the government's interest in having registrants retain their cards at all times was an important one and that the prohibition of destruction of the cards worked no restriction of First Amendment freedoms broader than necessary to serve the interest, the Court upheld the statute. Subsequently, the Court upheld a passive enforcement policy singling out for prosecution for failure to register for the draft those young men who notified authorities of an intention not to register for the draft and those reported by others.3

Footnotes

  1.  Jump to essay-1391 U.S. 367 (1968).
  2.  Jump to essay-2391 U.S. at 376–77. The Court applied the O’Brien test less deferentially in Turner Broadcasting System v. FCC, 512 U.S. 622 (1994).
  3.  Jump to essay-3Wayte v. United States, 470 U.S. 598 (1985). The incidental restriction on First Amendment rights to speak out against the draft was no greater than necessary to further the government’s interests in prosecutorial efficiency, obtaining sufficient proof prior to prosecution, and promoting general deterrence (or not appearing to condone open defiance of the law). See also United States v. Albertini, 472 U.S. 675 (1985) (order banning a civilian from entering military base upheld as applied to attendance at base open house by individual previously convicted of destroying military property).