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... apriorism 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 states improper use statute unconstitutional because it im permissibly 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 states 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 OBrien test. By falling outside of the OBrien test, the Court was able to apply strict scrutiny. The same standard holds true for this case. The restriction on [Country Joes] 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 Joes actions were expressive and therefore entitled to First Amendment protection, 2) Georgias statute is related to the suppression of free speech and therefore falls outside of the OBrien test, and 3) Georgias interest does not justify Country Joes conviction under strict scrutiny. Therefore, we can only conclude that the Georgia statute is facially unconstitutional. Bibliography: Pols 4131, Freedom of Expression Hypothetical; Bill Thomas Texas v. Johnson, 491 U. S. 397 (1989) United States v. OBrien, 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.
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