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Armband Case Black

February 8th, 2010Author: admin

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What do you think about the legal difference between burning a flag and burning a draft card?

The Supreme Court has ruled that some kinds of symbolic speech are constitutional and others are not. For example, in United States v. O'Brien, 1968, the Court deemed unconstitutional the burning of draft cards as a symbol of protest against the Vietnam War. (But a year later, a different case did allow the wearing of black armbands by students protesting the war.) When a man burned the American flag at a Republican convention, that act was not unconstitutional; because the action occurred during a political convention, the Court (in Texas v. Johnson, 1989) maintained it was protected as symbolic speech.

The law under which O'Brien was originally convicted - USC § 462(b)(3), specifically "... who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate . . . ," is, on the face of it "content neutral". This means that whether you destroyed your draft card as a political protest against the war itself, because you personally didn't want to be drafted, or just because you were drunk and thought it would make a cool bong lighter, didn't matter - it was the ACT of destroying the certificate that was illegal.

The first appeals court held that because the 'intent' of the law was to stop protestors burning their draft cards, it was in fact a restriction on free speech, and struck down his conviction.

They held, however, that once O'Brien had burned his draft card, he was in violation of § 462(b)(6), which required him to have his card in his possesion at all times, and upheld his sentence on that basis.

The Government appealed the Appeals courts ruling against 462(b)(3), and O'Brien counter-appealed their ruling upholding his sentence for a crime - 462(b)(6) - he was never charged with.

The Supreme Court overturned the appeals court as to 462(b)(3), saying that the law was content-neutral, and thus legal, and therefore never reached the question of O'Briend conviction under 462(b)(6).

Where Courts have struck down flag-burning laws has been because they are NOT content-neutral. Just burning a US flag is done all the time - burning is the approved method of disposing of a US Flag that has become dirty or tatty.

Thus it's not merely the act of actually burning the flag that was criminalized by these laws, it was the act of buring the flag AS A PROTEST, That makes such laws content-specific, not content-neutral, and thus unconstitutional.

Richard

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