Perhaps one of the most controversial issues is whether the part of the First Amendment that protects free speech should ever protect conduct. In other words, can conduct be a form of speech for First Amendment purposes? A typical model of free speech protection unfolds this way: I stand on my soapbox in the park and share with the world my opinion on a contentious topic of the day. A police officer walking by might like to poke me with his nightstick and encourage me to move on. But the First Amendment can be interpreted as preventing a public authority from interfering with my reasonable use of public space to air my views.
Now consider my using the same soapbox but to stand on while I light and then burn an American flag. One way of distinguishing this case from the previous one is to point out that far more people may be offended by my burning the flag than would be by my views on any given subject, even if shouted at the top of my lungs. Or maybe the key should be the difference between speech and conduct—in the first instance it was ‘‘only’’ speech in which I was engaged, whereas in the second, I was not speaking at all but, instead, doing something physical and engaging in a form of conduct highly repugnant to many citizens walking by, watching me on the evening news, and so forth.
In one (actually two) of the Supreme Court’s most notorious decisions, the justices have ruled that neither state government (Texas v. Johnson) nor the federal government (U.S. v. Eichman) can criminalize flag desecration without violating the free speech clause of the First Amendment. What was protected by the Constitution in the state case was Joey Johnson’s ‘‘expressive speech,’’ his act of burning the flag. When Congress, in response to the Court’s ruling, passed a federal law authorizing punishment of flag burners it was promptly overruled by the Court as well.
So some forms of conduct constitute acts of expression and even without conventional speech being part of the act, or conduct, may be protected speech. Perhaps the most important question, however, is not what forms of conduct may take on the appearance, or at least categorization, of speech but, more precisely, what forms of conduct may constitute First Amendment–protected speech—in other words, conduct that the courts believe should be given legal protection under the First Amendment free speech clause.
The Vietnam War–era case, U.S. v. O’Brien, 391 U.S. 367 (1968), provides a useful counterpoint to the flag burning cases. O’Brien and several comrades, in 1966, burned their draft cards—Selective Service registration certificates—on the steps of the South Boston Courthouse. Their act was witnessed by a large group of people who, fortunately for O’Brien, included FBI agents who rushed him to safety when attacked by several violent onlookers. O’Brien was prosecuted and convicted of transgressing the Universal Military Training and Services Act of 1948, Section 462(b)(3), amended by Congress in 1966 to make it an offense if anyone ‘‘forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes’’ a draft card. The law was amended because of the Vietnam War, and O’Brien publicly burned his draft card because of the Vietnam War. He knowingly destroyed his registration certificate as a means of expressing his view that America’s war in Southeast Asia was wrong.
Like Johnson and Eichman, O’Brien engaged in an act of speech—political speech—for the purpose of communicating an unpopular but sincere political opinion. If the First Amendment protects one’s right to express political views and the language of the Constitution’s free speech clause is interpreted to include forms of expressive conduct as speech, then (in theory) O’Brien should receive as much constitutional protection as Johnson and Eichman. Although O’Brien’s conduct on the courthouse steps seemed to anger some in the crowd, it could hardly be said that draft card burning is any more offensive than U.S. flag burning, even in time of war when draft laws are in effect.
But O’Brien’s speech was not protected by the Constitution, or so said the Supreme Court. Why? Because the government had a legitimate, nonspeech– related reason for criminalizing his behavior. True, O’Brien burned his card to express an opinion. True, even though O’Brien’s opinion was expressed through conduct, some forms of conduct can be classified as speech. The Court has been willing to use the First Amendment to protect speech even, on occasion, when that speech comes in the form of expressive conduct—so long as it is designed to communicate the same kind of point of view as a political tract or newspaper headline or stump speech from the courthouse steps.
But O’Brien’s Selective Service certificate burning was not only that. It also violated a law that was not designed to interfere with free speech but, rather, to help the government keep track of those young men it would like to send abroad to fight. Some federal legislators may have been pleased that in doing their constitutionally allotted work (raising an army for the national defense, in this instance) they made draft card burning by antiwar critics like O’Brien a little more costly, a little more painful. But that did not change the fact that the law criminalizing flag burning had no legitimate government interest or purpose behind it. Laws against flag burning have as their sole purpose the prohibition of a particularly repellant form of political speech. In the end, the distinction between speech and conduct may not be as crucial as that between speech/conduct violating laws solely designed to prohibit speech and speech/ conduct violating laws designed to secure a constitutionally legitimate governmental aim.