In 1992, an antiwar activist, Country Joe, violated a Georgia statute by acting out a skit that urged people to refuse to fight in the Persian Gulf war, overthrow the government and form a socialist regime. He then burned a military uniform in opposition to the war, and was arrested for his actions. This paper will examine the Georgia statute that Country Joe violated and address the constitutionality of that law.
The Georgia statute under which Country Joe was arrested made it a crime “to wear the uniform of the armed forces of the United States in any way that brings discredit upon that armed force. Further, the uniform may not be used in any way that advocates the overthrow of the government of the United States by force. Further, the uniform may not be defaced, mutilated or treated in a contemptuous manner.” The question in this case is not whether Country Joe violated the Georgia statute, but whether the law is constitutional.
Following the standards set forth in Texas v. Johnson, we must first establish that Country Joe’s actions constituted expressive conduct. Next, if his conduct was expressive, we must decide whether the state statute is related to suppression of free speech. If the statute is not related to expression, then the less stringent standard announced in United States v. O’Brien, which regulates noncommunicative conduct, controls. If it is related to expression, then the regulation is outside of the O’Brien test and we must decide whether this interest justifies Country Joe’s conviction under a more demanding standard.
First, in deciding whether Country Joe’s conduct was expressive, we must ask if “an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Given the fact that Country Joe is a known antiwar activist, it is apparent that he intended to convey a political message. Country Joe used speech and nonspeech elements to convey his message. First, donning an army uniform, he staged a skit based on his song, “The Persian Gulf Rag.” Second, he preached an antiwar sermon that urged people to refuse to fight in the war. Third, he advocated overthrow of the government by those who believed the government was acting in an illegitimate manner, and he urged them to replace it with a socialist regime. Fourth, he removed the army uniform and set it afire.
Given the facts set before us, it is readily apparent that Country Joe’s intention was to convey an antiwar message. Several actions similar to Country Joe’s have already been found to be protected expressive conduct in prior cases. In Schacht v. United States, the Supreme Court found Title 18 U.S.C §702 facially unconstitutional because it allowed an actor who wore a military uniform the right to praise the military and its actions, but denied the person the right to discredit the military or its actions in any way. And, if the actor did discredit the military, he or she could be sent to prison for opposing it. The Court found the U.S. Code to be “…an unconstitutional abridgement of the freedom of speech.”
Other cases similar to Country Joe’s are Dennis v. United States and Brandenburg v. Ohio. Dennis involved leaders of the Communist Party conspiring and advocating a forceful overthrow of the government. These actions were a direct violation of the Smith Act. The Supreme Court, using the “Clear and Probable Danger Test,” found it within Congress’s power to protect the Government of the United States from armed rebellion. However, the ruling was not based merely on speech (the advocacy of the overthrow of the government), but instead focused on the act of inciting violence.
Brandenburg involved the Ku Klux Klan advocating white supremacy. In a Per Curiam decision, the Court ruled that the constitution does not permit states to “…forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” While Country Joe was advocating the overthrow of the government, he was not inciting violence.
Country Joe’s final act of expression is closely related to the issue in Texas v. Johnson. In this case, Gregory Johnson burned an American flag while he demonstrated outside the 1984 Republican National Convention in Dallas, Texas. The Supreme Court held that Johnson’s action did constitute expressive conduct. Furthermore, the Court decided that “expression may not be prohibited on the basis that an audience that takes offense to the expression may disturb the peace, since the government cannot assume that every expression of a proactive idea will incite a riot but must look to the actual circumstances surrounding the expression. Country Joe’s conduct of burning the army uniform was an act of overt, political expression and therefore falls under protection of the First Amendment.
Now that we have decided that Country Joe’s expression was protected, we must next decide if Georgia’s statute is related to the suppression of free speech. Using the cases described above, we will conclude that the statute does in fact suppress the freedom of speech. In fact, Georgia’s statute is a prime example of “chilled speech” (this occurs when laws intended to regulate certain forms of expression make people fearful of engaging in legitimate activities). The first analogous case that demonstrates Georgia’s use of chilling speech is that of Schacht v. United States. Georgia’s statute reads that wearing “…the uniform of any branch of armed service of the United States in any way that brings discredit upon that armed force” is a crime. Schacht held that the phrase “tend to discredit” the military allows individuals to praise the armed forces but makes it a crime to oppose the military. This phrase, therefore, is meant to chill the speech of an individual regarding the armed services. Georgia’s statute, like Schacht, has a chilling effect Therefore, the first clause of the statue is repugnant to First Amendment of the Constitution.
Another case worth mentioning is that of Boos v. Barry. In this case, Justice O’Connor, found that a “content-based restriction on political speech in a public forum, which is not narrowly tailored to serve a compelling state interest” is unconstitutional. The Georgia statute is overbroad and does not serve a compelling state interest. The state may want to protect, or promote, patriotism but it is within the right of every individual to express his dislike of, or objection to, the armed forces. As noted in Street v. New York, the Court wrote that “it is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”
The second clause of the Georgia statute, which outlaws wearing a military uniform while advocating the overthrow of the government, is also unconstitutional. Two cases can be used to show the unconstitutional value of this clause: Spence v. Washington and Brandenburg v. Ohio. Spence involved a man, Harold Spence, affixing a peace symbol to both sides of the U.S. flag in protest of the killings in Cambodia and at Kent State University. He was arrested for “improper use” of the flag. The Court held the state’s “improper use” statute unconstitutional because it “…impermissibly infringed a form of protected expression.” At issue here was the improper use of the American flag. The state felt as though the flag should promote a sense of nationhood and not be used for protest. Harold Spence, however, felt the flag was the perfect symbol to use in making his point. The Court agreed. In a Per Curiam decision, the Court held that “…the context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol.” The same holds true for Country Joe. Country Joe wore the army uniform as a symbol. Therefore, his wearing the uniform gave context for the meaning of the symbol.
The second case, Brandenburg v. Ohio, is similar because the Court found that merely advocating overthrow of the government does not fall outside the scope of the First Amendment. The defining line used to decide whether such speech is protected or not is the incitation test. So long as someone is merely advocating, and not inciting, the speech is protected. Had Country Joe possessed firearms, attempted to gather followers, and was marching to the Capital, the result might be different. But as it stands, Country Joe was merely advocating an overthrow of the government in hopes of replacing it with a socialist form of government.
The final clause of the statute forbids the military uniform to be “…defaced, mutilated or treated in a contemptuous manner.” Again, this clause, like the flag cases, is unconstitutional. Another important issue involves property. Military uniforms can be privately purchased at uniform shops, Army and Navy surplus stores and many other retail facilities around the world. Therefore, the state cannot assume a complete property interest in the uniform(s). And with some exceptions, individuals can destroy personal property as they see fit.
Another aspect of this clause deals with the state’s intent. Most likely, Georgia adopted the statute in order to promote a sense of nationhood and national unity. This was also found to be the intent of Texas in Texas v. Johnson. However, the Court found that “Texas’ interest in preserving the flag as a symbol of nationhood and national unity is related to expression and, thus, falls outside the O’Brien test.” By falling outside of the O’Brien test, the Court was able to apply strict scrutiny. The same standard holds true for this case. “The restriction on [Country Joe’s] political expression is content based, since the [Georgia] statute is not aimed at protecting the physical integrity of the [uniform] in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others.” The Court continues by stating “the government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the government may not permit designated symbols to be used to communicate a limited set of messages.” So, for First Amendment purposes, it is clear, here, that the words “flag” and “uniform” can, and should, be used interchangeably. If Texas, or the federal government, cannot place restrictions on the expressive destruction of a national flag, then Georgia cannot place restrictions on the expressive destruction of a national uniform.
Given the facts set before us, we have concluded that 1) Country Joe’s actions were expressive and therefore entitled to First Amendment protection, 2) Georgia’s statute is related to the suppression of free speech and therefore falls outside of the O’Brien test, and 3) Georgia’s interest does not justify Country Joe’s conviction under strict scrutiny. Therefore, we can only conclude that the Georgia statute is facially unconstitutional.
Pols 4131, Freedom of Expression Hypothetical; Bill Thomas
Texas v. Johnson, 491 U.S. 397 (1989)
United States v. O’Brien, 391 U.S. 367 (1968)
ibid.
Quoted in Texas v. Johnson, 491 U.S. 397 (1989) from Spence v. Washington, 418 U.S. 405 (1974)
Pols 4131, Freedom of Expression Hypothetical; Bill Thomas
Schacht v. United States, 398 U.S. 58 (1970)
Footnote 1 of Schacht v. United States quotes Title 18 U.S.C §702 as follows: “Whoever, in any place within the jurisdiction of the United States or in the Canal Zone, without authority, wears the uniform or a distinctive part thereof or anything similar to a distinctive part of the uniform of any of the armed forces of the United States, Public Health Service or any auxiliary of such, shall be fined not more than $250 or imprisoned not more six months, or both.”
Dennis v. United States, 341 U.S. 494 (1951)
Brandenburg v. Ohio, 395 U.S. 444 (1969)
Brandenburg v. Ohio, 395 U.S. 444 (1969)
Texas v. Johnson, 491 U.S. 397 (1989)
Texas v. Johnson, 491 U.S. 397 (1989)
Lee Epstein and Thomas G. Walker, Constitutional Law for a Changing America, (Washington, D.C.: Congressional Quarterly, 1998) 258.
Schacht v. United States, 398 U.S. 58 (1970)
Boos v. Barry, 485 U.S. 312 (1988)
Street v. New York, 394 U.S. 576 (1969)
Spence v. Washington, 418 U.S. 405 (1974)
ibid.
Pols 4131, Freedom of Expression Hypothetical; Bill Thomas
Quoted from Texas v. Johnson, 491 U.S. 397 (1989) using Country Joe, Georgia and uniform in place of Johnson, Texas and flag.
Pols 4131, Freedom of Expression Hypothetical; Bill Thomas
Quoted from Texas v. Johnson, 491 U.S. 397 (1989) using Country Joe, Georgia and uniform in place of Johnson, Texas and flag.
