April 3, 2018

Constitutional Law 2

69) UNITED STATES VS O’BRIEN

FACTS: O'Brien burned his Selective Service registration certificate before a sizable crowd in
order to influence others to adopt his anti-war beliefs. Defendant knowingly burned his draft card
on the front steps of the local courthouse and was convicted for symbolically burning his draft
card under a federal statute forbidding the altering of a draft card O’Brien under Section: 462(b)
(3) of the Universal Military Training and Service Act (UMTSA) of 1948, amended in 1965 to
include the applicable provision that made it an offense to “alter, knowingly destroy, knowingly
mutilate” a Selective Service registration certification. The Court of Appeals held the 1965
Amendment unconstitutional under the First Amendment as singling out for special treatment
persons engaged in protests, on the ground that conduct under the 1965 Amendment was already
punishable, since a Selective Service System regulation required registrants to keep their
registration certificates in their "personal possession at all times," 32 CFR § 1617.1, and willful
violation of regulations promulgated under the Act was made criminal by 50 U.S.C.App. §
462(b)(6). The court, however, upheld O'Brien's conviction under § 462(b)(6), which, in its view,
made violation of the nonpossession regulation a lesser included offense of the crime defined by
the 1965 Amendment
ISSUE: Was the law an unconstitutional infringement of O'Brien's freedom of speech?
CONCLUSION: The law was not unconstitutional. The 7-to-1 majority, speaking through Chief
Justice Earl Warren, established a test to determine whether governmental regulation involving
symbolic speech was justified. The formula examines whether the regulation is unrelated to
content and narrowly tailored to achieve the government's interest. First, a government regulation
is sufficiently justified if it is within the constitutional power of the government. Second, if it
furthers a substantial or important governmental interest. Third, if the governmental interest is
unrelated to the suppression of free expression. Fourth, if the incidental restriction on alleged
First Amendment constitutional freedoms is no greater than is essential to the furtherance of that
interest. The 1965 Amendment meets all these requirements. Therefore, the 1965 Amendment is
constitutional as applied to Defendant.

70) TEXAS VS JOHNSON

FACTS: During the 1984 Republican National Convention, respondent Gregory Lee Johnson
participated in a political demonstration to protest the policies of the Reagan administration and
some Dallas-based corporations. Johnson burned an American flag outside of the convention
center where the 1984 Republican National Convention was being held in Dallas, Texas.
Johnson burned the flag to protest the policies of President Ronald Reagan. He was arrested and
charged with violating a Texas statute that prevented the desecration of a venerated object,
including the American flag, if such action were likely to incite anger in others. A Texas court
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tried and convicted Johnson. He appealed, arguing that his actions were "symbolic speech"
protected by the First Amendment. The Supreme Court agreed to hear his case.
ISSUE: Whether flag burning constitutes "symbolic speech" protected by the First Amendment.
CONCLUSION: The majority of the Court, according to Justice William Brennan, agreed with
Johnson and held that flag burning constitutes a form of "symbolic speech" that is protected by
the First Amendment. The majority noted that freedom of speech protects actions that society
may find very offensive, but society's outrage alone is not justification for suppressing free
speech.
In particular, the majority noted that the Texas law discriminated upon viewpoint, i.e., although
the law punished actions, such as flag burning, that might arouse anger in others, it specifically
exempted from prosecution actions that were respectful of venerated objects, e.g., burning and
burying a worn-out flag. Expression may not be prohibited on the basis that an audience that
takes serious offense to the expression may disturb the peace, since the Government cannot
assume that every expression of a provocative idea will incite a riot, but must look to the actual
circumstances surrounding the expression. The majority said that the government could not
discriminate in this manner based solely upon viewpoint.

DISSENT: It was for Defendant’s use of this symbol, not the idea that he sought to convey for
which he was convicted. The interest of preserving the flag as a symbol of nationhood is
legitimate and justified the Defendant’s conviction. Justice Stevens argued that the flag's unique
status as a symbol of national unity outweighed "symbolic speech" concerns, and thus, the
government could lawfully prohibit flag burning.
71) GRADY VS NORTH CAROLINA
FACTS: Between 1997 and 2006, Torrey Grady was convicted of two sexual offenses. After
being released for the second time, a trial court civilly committed Grady to take part in North
Carolina’s satellite-based monitoring program as a recidivist sex offender for the duration of his
life. The program required participants to wear a GPS monitoring bracelet so that authorities can
make sure that participants are complying with prescriptive schedule and location requirements.
Grady challenged the constitutionality of the program and argued that the constant tracking
amounted to an unreasonable search that was prohibited under the Fourth Amendment. Both the
trial court and the North Carolina Court of Appeals held that wearing a GPS monitor did not
amount to a search.
ISSUE: Does wearing a GPS monitor constitute a search under the Fourth Amendment?
CONCLUSION: Yes. The Court held that the trial court and appellate court both failed to apply
the correct law based on the Court’s decision in United States v. Jones, which held that placing a
GPS tracker on the bottom of a vehicle constituted a search under the Fourth Amendment. The
Court held that participation in the North Carolina program amounted to a search because
requiring someone to wear a bracelet that tracks the person’s whereabouts constitutes what
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the Jones decision termed a “physical occupation of private property for the purpose of obtaining
information.” The Fourth Amendment prohibits only unreasonable searches. The reasonableness
of a search depends on the totality of the circumstances, including the nature and purpose of the
search and the extent to which the search intrudes upon reasonable privacy expectations. The
North Carolina courts did not examine whether the State's monitoring program is reasonable
when properly viewed as a search and we will not do so in the first instance. The petition for
certiorari is granted, the judgment of the Supreme Court of North Carolina is vacated, and the
case is remanded for further proceedings not inconsistent with this opinion.