The Flag-Burning Ordinance and the Licensing Scheme
A city enacts two measures after a series of protests. Measure A makes it a crime to burn "any flag, cloth, or symbol" on public property "in a manner likely to offend passersby." Measure B requires any group of more than 12 people to obtain a permit from the police chief 10 days before assembling on public sidewalks; the chief has "unfettered discretion" to deny permits based on "public safety and community standards," and there is no deadline for the chief to act and no appeal. A protest group applies for a permit under Measure B and is denied without explanation. The group then burns a flag on the courthouse steps and is charged under Measure A. The group challenges both measures.
1. Is Measure A constitutional as applied to the flag burning? Explain the governing doctrine.
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Measure A is unconstitutional as applied. Burning a flag is expressive conduct protected by the First Amendment. Under the standard for content-neutral regulation of expressive conduct, a regulation must be justified by an important or substantial government interest unrelated to the suppression of expression, and the incidental burden on expression must be no greater than essential to further that interest. Measure A fails because its prohibition turns on whether the conduct is "likely to offend passersby" - a purpose tied directly to suppressing disfavored messages. That makes it content-based (or viewpoint-based), triggering strict scrutiny, which it cannot survive. Even if framed as preventing breaches of the peace, the "offensiveness" trigger is precisely the sort of heckler's-veto rationale the Court has rejected. The government may not prohibit expression merely because it is offensive. Thus the charge cannot stand.
2. Evaluate Measure B's permit requirement under the First Amendment.
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Measure B is facially unconstitutional. A permit scheme regulating speech in a public forum must contain narrow, objective, and definite standards to guide the licensing authority, and it must provide for prompt decisions and expeditious judicial review. Measure B fails on multiple counts: the police chief has "unfettered discretion" and may deny based on vague "community standards"; there is no deadline for the chief to act, creating the risk of indefinite delay that chills speech; and there is no appeal mechanism. A licensing scheme that gives officials unlimited discretion is a prior restraint that allows censorship based on the content or viewpoint of the proposed assembly. The absence of procedural safeguards - prompt decision and judicial review - independently condemns it. The denial without explanation compounds the problem. The measure cannot be enforced against the group.
3. Suppose the city rewrote Measure B to require a permit, with a 5-day deadline for a decision and expedited judicial review, but allowed denial only when the assembly would block a designated emergency route. Would that change the result?
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Yes, substantially. A rewritten scheme with objective, narrow criteria, a firm decision deadline, and expedited judicial review would likely satisfy the First Amendment. The government may impose content-neutral time, place, and manner restrictions that are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. Protecting designated emergency routes is a significant interest, and limiting denial to that specific, objective circumstance avoids unbridled discretion. The 5-day deadline and expedited review supply the procedural safeguards a prior restraint requires. The remaining question would be whether the restriction leaves open ample alternative channels - for example, whether the group can assemble nearby or at another time. If so, the scheme is likely valid; if it effectively forecloses all meaningful assembly, it could still fail narrow tailoring.