The decisions in U.S. v. O'Brien, 391 U.S. 367, 1968, and Texas v. Johnson, 491 U.S. 397, 1989 are examined with regard to the First Amendment.
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Paper Summary:
This paper discusses the First Amendment, freedom of speech. It gives two court cases to prove how as speech takes on more and more aspects of conduct, the inherent power of the government to control the activities becomes stronger.
From the Paper:
"The question of expressive conduct has always been a difficult one for freedom of speech jurisprudence. This area of law involves balancing the government's power to limit conduct in order to forward its legitimate, important, or compelling interests with the protection of free speech. Freedom of speech provided by the First Amendment prevents the government from impinging upon the educational, safety valve, truth seeking, or social obligation functions of public speech (O'Connor). Never an individual right, freedom of speech allows the public as a whole the right to express publicly their opinion about the government and teach others that opinion without reprisal. As the speech takes on more and more aspects of conduct, the public good functions of freedom of speech become less central and the inherent power of the government to control the activities becomes stronger. The decisions in U.S. v. O'Brien, 391 U.S. 367, 1968, and Texas v. Johnson, 491 U.S. 397, 1989, rest on these balancing considerations.
The O'Brien case involved the burning of a Selective Service Card in front of a large crowd in order to try to influence them to join in O'Brien's anti-war beliefs (O'Brien, supra, par. 4). In the District Court of Massachusetts, O'Brien was convicted of violation of Section 462 (b) of the Universal Military Training and Service Act of 1948, which made it a crime to forge, alter, knowingly destroy, knowingly mutilate, or in any manner change the card (O'Brien, supra, par. 6). The court of appeals held this law unconstitutional, as infringing on the right to freedom of the speech, but urged conviction on alternative grounds. The court asserted that O'Brien should be convicted under 50 U.S.C. App. 462 (b) (6), a statute that allegedly made nonpossession of the card a crime (O'Brien, supra, par. 7). The United States Supreme Court accepted certiorari in order to resolve conflicts about the application of Section 462 (b) in the Second and Eighth Circuits (O'Brien, supra, par. 8)."
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