FREE ESSAY ON FLAMIN' COUNTRY JOE

FLAMIN' COUNTRY JOE

Flamin' Country Joe
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.
Bibliography
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.