Freedom of Speech Brandenburg v.

Ohio Facts: Leader of a KKK group convicted under the Ohio Statute for o advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform and for voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism Holding o This statute purports to punish mere advocacy and forbids assembly with others merely to advocate the described type of action. Notes: o A conviction for incitement under Brandenburg is constitutional only if several requirements are met 1) Imminent harm 2) A likelihood of producing illegal action 3) An Intent to cause imminent Illegality B. Symbolic Conduct United States v. OBrien Facts: o 1) Obrien and several others burned their Selective Service registration certificates on the steps of the South Boston Courthouse. o 2) Any person who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate Opinion: o 1) The statute on its face deals with conduct having no connection with speech. It prohibits the knowing destruction of certificates issued by the Selective Service System, and there is nothing necessarily expressive about such conduct I) OBrien argues that it is unconstitutional as applied to him because his act of burning the certificate was protected symbolic speech within the first amendment. His argument is that the freedom of expression which the 1 amendment guarantees includes all modes of communication of ideas by conduct and that his conduct is within this definition because he did it in demonstration against the war and against the draft o 1) When speech and non speech 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 o 2) The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of the system and legislation to

insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the systems availability o 3) Because the Gov. substantial interest in assuring the continuing availability of issued SS certificates, because the statute is an appropriately narrow means of protecting this interest and condems only the independent noncommunicating impact of conduct within its reach and because Obrien frustrated this interest, a sufficient governmental interest has been show to justify his conviction Texas v. Johnson Facts o 1) Johnson publicly burned an American Flag as a means of political protest Opinion o 1) In order to decide whether OBrien test applies the court must decide whether Texas has asserted an interest in support of Johnsons conviction that is unrelated to the suppression of expression Texas claims that its interest in preventing breaches of the peace justifies Johnsons conviction for burning the flag o No disruptive behavior occurred Texas also asserts an interest in preserving the flag as a symbol of nationhood and national unity. Scrutiny o 1) Johnsons political expression was restricted because of the content of the message he conveyed Court must therefore subject the States asserted interest in preserving the special symbolic character of the flag to strict scrutiny Content Based or Content Neutral Turner Broadcasting v. FCC Facts: o 1) Cable Television Consumer Protection Act require Cable television sstems to devote a portion of their channels to the transmission of local broadcast television stations. o 2) The must carry provisions require cable operators to carry the signals of a specified number of local broadcast stations o