Expressive Speech, O'Brien, and Johnson: Key Concepts and Cases

Expressive speech includes: spoken words, written words, and expressive conduct (actions conveying a message).
Laws must specify what you cannot do; vague language leads to interpretation and enforcement concerns.
Interfering with a police officer’s official duty is a core example discussed; disorderly conduct statutes often hinge on what is prohibited and how broadly they are written.

Facts: Burning draft cards; charged with destruction of government property in a federal case.
Question: Does First Amendment protect the act, or can government regulate this conduct without violating free speech?
Governing standard: intermediate scrutiny (the O'Brien test), not pure strict scrutiny.
- Regulation must be within the power of the government to enact.
- Regulation must serve an important or substantial government interest.
- Regulation must be narrowly tailored to serve that interest and must not target speech itself; it should be unrelated to suppressing the message.
- There must be alternative channels for communication; the regulation should not be overbroad.
Outcome: Conviction upheld because the government had a substantial interest (military draft) and there were other ways to express dissent; the restriction on burning a draft card was permissible as incidental to that interest.
Important nuance: O'Brien is about regulation of conduct with incidental impact on speech; it is not a claim of the most stringent (strict) scrutiny.

Facts: Gregory Johnson burned the American flag at the Republican National Convention; Texas charged him under state law.
Issue: Is flag burning protected speech?
Holding: Yes. Burning the flag is expressive conduct protected by the First Amendment.
Reasoning: The act conveyed political dissent and qualified as expressive speech; the government cannot criminalize the display of dissent through flag desecration.
Court noted the balance of government interest vs. individual expressive rights, with the court often described as a swing-vote scenario on the Supreme Court’s composition.

Some language or actions may be protected only if there is “speech plus” (speech accompanied by conduct or another action).
Watford-type discussion (as mentioned): Conviction reversal in some cases because the analysis focused on whether language alone suffices or if there must be accompanying overt acts to constitute protected expressive conduct.
Takeaway: Even angry or inflammatory language can be protected if not accompanied by unlawful or violent acts; the presence or absence of an overt act can affect whether speech qualifies as protected expressive conduct.

NY Penal Law § 240.20 (Disorderly Conduct) covers what you cannot do to avoid creating a crime; it includes prohibitions that can interfere with an officer’s official duties.
Key point: Laws must “tell you what you cannot do” clearly; vague or broad language invites arbitrary enforcement and raises constitutional concerns.

The draft-card case (O'Brien) centers on the government’s interest in maintaining a functioning draft system and military readiness.
Dissenting or alternative viewpoints: dissent can be expressed through other channels (protests, letters, speeches), so long as the government’s interest justifies the regulation.

Distinguish between speech and conduct; expressive conduct can be protected, but conduct regulating mechanisms (like draft card destruction) may be regulated under intermediate scrutiny.
O'Brien framework (intermediate scrutiny):
- Regulation within power of government.
- Substantial or important government interest.
- Regulation incidental to speech is not aimed at suppressing the message.
- Narrowly tailored; allows alternative channels.
Texas v. Johnson: Flag burning as protected symbolic speech; expressive conduct with First Amendment protection.
“Speech plus” concept: Mere words may be insufficient if not paired with protected conduct; overt acts can trigger or negate protection.
Disorderly conduct statutes require clear prohibitions to avoid vagueness and unconstitutional enforcement.
Context matters: Court composition can influence outcomes in criminal First Amendment cases.