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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 Joes 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. OBrien, which regulates noncommunicative conduct, controls. If it is related to expression, then the regulation is outside of the OBrien test and we must decide whether this interest justifies Country Joes conviction under a more demanding standard. First, in deciding whether Country Joes 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 non speech 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 Joes intention was to convey an antiwar message.
Several actions similar to Country Joes 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 Joes 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 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 Joes 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 Johnsons 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 Joes 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 Joes expression was protected, we must next decide if Georgias 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, Georgias 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 Georgias use of chilling speech is that of Schacht v.
United States. Georgias 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. Georgias 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 OConnor, 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 overboard and does not serve a compelling state interest. The state may want to protect, or promote, p...
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Research essay sample on Persian Gulf Armed Forces
