First Amendment Activity: Key
(1) A college student used duct tape to place a peace symbol on a U.S. flag and then hung the
flag from his apartment window. His purpose was to protest the recent invasion of Cambodia.
He was charged and convicted under a law that made it illegal to place a mark, figure, word,
or picture of any nature on a United States flag.
a.
b.
c.
d.
What is the speech in this case?
What is the law in this case?
What test do you think should apply?
Is the law constitutional or unconstitutional?
Answer: Spence v. Washington - The SC found this was expressive activity - Focused on two
factors: the nature of the conduct and the context within which the conduct occurred. As to
the nature, flags have been traditionally used as a form of communication, and the use here
was consistent with that tradition. In terms of context, given the temporal proximity of the
flag display to the invasion of Cambodia, it would have been difficult for the majority of
students to miss the student’s message. Given these two factors, student’s conduct was clearly
expressive. The court found the statute unconstitutional.
(2) A group wanted to bring attention to the problem of homelessness in Washington, D.C. They
thought that if they erected tents and slept overnight in the tents, they would get attention and
the display would show the public that homelessness is a problem in the city. The group
applied for a park permit to erect tents and to sleep in those tents overnight in Lafayette Park.
The Park Service denied the group’s request for a permit because of a state law that only
permitted “camping” (defined as sleeping in a tent) in designated parks. Lafayette Park is not
a designated park.
a.
b.
c.
d.
What is the speech in this case?
What is the law in this case?
What test do you think should apply?
Is the law constitutional or unconstitutional?
Answer: Clark v. Community for Creative Non-Violence: The Court found the “sleeping”
was FA protected expression, but upheld the regulation as CNTPMR. Not unconstitutional.
(3) The school board adopted a law ordering that students and teachers had to salute the flag
every morning. A student, who was a Jehovah’s Witness, refused to salute the flag because it
was against his religious beliefs to do so. The student was expelled from school and his
parents were ordered to pay a fine.
a.
b.
c.
d.
What is the speech in this case?
What is the law in this case?
What test do you think should apply?
Is the law constitutional or unconstitutional?
Answer: West Virginia Board of Education v. Barnette: Speech is compelled: The flag is a
symbol of adherence to the government, and the regulation requires the individual to
communicate by word and sign his acceptance of the political ideas it thus bespeaks. Freedom
of thought and religion includes both the right to speak freely and the right to refrain from
speaking at all.
(4) A New Hampshire law required license plates to display the state motto of “Live Free or Die”
and made it a misdemeanor to knowingly obscure the letters on the plate. Mr. Maynard was a
Jehovah’s Witness and covered the motto on his license plates because it was against his
beliefs. When Mr. Maynard covered up that part of his license plate, he was fined and jailed
for violating the law.
a.
b.
c.
d.
What is the speech in this case?
What is the law in this case?
What test do you think should apply?
Is the law constitutional or unconstitutional?
Answer: Wooley v. Maynard: The SC applies SS (mobile billboard) and finds that means are
not the least restrictive alternative. First State end is identification of passenger vehicles, but
the plates normally consist of a specific configuration of letters and numbers, which makes
them readily distinguishable from other types of plates, without the state motto. Second end is
promotion of history, individualism, and state pride – court found that State may legitimately
pursue such interests in a number of ways, but not in a way that outweighs the individual’s
FA right to avoid being the courier for such message.
(5) A group wanted to perform at an outdoor concert venue in New York City called the
Bandshell. The group wanted to use its own sound equipment and sound technician
for the concert. A New York City law required groups performing at the Bandshell to
use an experienced sound technician and to use high quality sound equipment
provided by the city. When the group refused to use the city’s technician, they were
not allowed to play their concert and it was shutdown.
a.
b.
c.
d.
What is the speech in this case?
What is the law in this case?
What test do you think should apply?
Is the law constitutional or unconstitutional?
Answer: The court found that this was valid CNTPMR – Court of Appeals erred when it held
that the sound-amplification guidelines were not the least intrusive means of regulating the
volume. The test is not whether the city’s solution was the least intrusive means of achieving
the desired end; it is not invalid simply because there is some imaginable alternative that
might be less burdensome on speech. Rather, it must be narrowly tailored to serve the
government’s legitimate content-neutral interests. (Ward v. Rock Against Racism)