first-amendment battery
Is an act of battery/assault - characterized as an 1st Amendment opinion - itself protected speech?
<p>A friend on Facebook posted an article proposing that burning an American flag be made an act of treason in the United States. I pointed out that in Texas v. Johnson the Supreme Court ruled that burning the American flag was a protected form of expression under the first amendment. He then asked if he struck the person that burned the flag (as a way of expressing his opinion of the flag burner) would that be protected under the first amendment? My initial response is that battery (striking the protester) would not be protected, but my Internet searching skills failed to come up with anything conclusive. There's a lot out there about <em>threats</em> of imminent violence not being protected by the first amendment, but nothing about <em>actual</em> violence. Can anyone provide some pointers that would be helpful? </p>

<p>You have a conflict of rights - freedom of expression vs freedom from harm. Freedom from harm wins - this is a crime and arguing a first amendment right to punch someone in the face is not going to work. Nor would it work if you expressed yourself by shooting them in the head.</p>

<p>More broadly, you can only exercise your rights so long as you don't infringe mine. You burning <em>your</em> flag is free speech: you burning <em>mine</em> is criminal damage.</p>

<p>As a rather trivial point - in the millisecond before the fist contacted the head there was clearly "imminent harm".</p>

<p>A battery (such as hitting) has no relation to First Amendment protection. First Amendment protects speech not conduct which injures another person. Burning a flag may invoke strong feelings from viewers, but those feelings must give way to protected speech. For government to regulate speech, it must be “integral to criminal conduct.” United States v. Meredith, 685 F.3d 814, 819, 2012 U.S. App. LEXIS 13012, 7, 2012-2 U.S. Tax Cas. (CCH) P50,421, 110 A.F.T.R.2d (RIA) 5157 (9th Cir. Cal. 2012) </p>

<p>Another instance of where most would rebuke conduct, but that conduct is found to be protected by the First Amendment would be wearing medals not earned in military service. The US Supreme Court backed the ruling of the Ninth Circuit and found protecting ones reputation is not a governmental function unless it violates criminal law.  United v. Alvarez, 617 F. 3d 1198. (Stolen Valor Act held unconstitutional) "At issue here is the First Amendment exception that allows the government to regulate speech that is integral to criminal conduct. . . ." Id. at 819-20. United States v. Osinger, 753 F.3d 939, 946, 2014 U.S. App. LEXIS 10377, 17-20, 2014 WL 2498131 (9th Cir. Cal. 2014)</p>

<p>To circle back around to the specifics of your question, the short answer is the First Amendment protects speech. While some conduct such as flag burning, or wearing medals is protected, hitting another person is outside the scope of protection of the constitution.</p>

<p>Freedom of Expression pertrains only to the "expression" part of an action. In other words - the government may not ever enact laws that would anyhow forbid any contents that a person can express. However it does not give an explicit right to for the citizen to break laws that congress can enact to serve his purpose. Let's say you've bought a ticket to a sports event. The organizers cannot legally hold you from attending the event (well, technically they could for some reasons, but let's simplify), however the don't have to allow you to use their car, to attend. The right to attend only pertains to the issue of being at the event, but doesn't give you unlimited, additional rights, to be able to use your right. Just as having a right to carry guns, doesn't give you the right to force gunmakers to make one for you. You may express even "battery expression" (if such thing existed), provided you don't break any other laws, that are not about speech/expression. Since you are, no, you can't punch anybody on the grounds of 1st amendment</p>
