cdTOCtest

for wearing a jacket with “Fuck the Draft” written on it.
He wore the jacket as a means of informing the public of
his feelings about the Vietnam War. The Court held that
no conduct was involved, simply speech. There was no
showing of an intent to incite disobedience or disruption
of the draft. States are free to ban the simple use of
“fighting words” which are inherently likely to provoke
violent action. However, the words here were not
directed to the person of the hearer as personal insult.
The fact that some unwilling “listeners” in a public
building may have been briefly exposed to it cannot
justify the conviction in this case.

In Tinker v. Des Moines Independent Community
School District, 393 U.S. 503 (1969), students wore arm
bands to school to protest the Vietnam War and were
suspended. Teachers and students retain their
constitutional rights in the school environment.
However, the State is authorized to prescribe and control
conduct in its schools. Wearing arm bands was akin to
“pure” speech and there was no disorder or disturbance
occasioned. There was no showing that the school
discipline would be disrupted. See New Jersey v. T.L.O.,
469 U.S. 325 (1985) (“we have recently held school
officials subject to the commands of the First
Amendment...”

United States v. O’Brien, 391 U.S. 367 (1968),
upheld a statute which classified the burning of draft
cards as a criminal offense. The concept that an
apparently limitless variety of conduct can be labeled
“speech” whenever the persons engaging in it intends
thereby to express an idea, was rejected. Due to the fact
that draft-card burning entails both communicative and
non-communicative aspects, a sufficiently important
government interest in regulating the non-speech
element can justify incidental limitations on First
Amendment freedoms. The statute advanced an
important interest of the government which was not
related to the curtailment of expressions. Any incidental
restriction upon the freedom of expression was only as
great as was necessary to advance that interest.

In Tri-State Metro Naturists v. Township of Lower, 219
N.J. Super. 103 (Law Div. 1987), plaintiffs argued that
defendant township’s total ban on the practice of nude
sunbathing on a public beach was a violation of their First
and Fourteenth Amendment right to freedom of
expression. The trial court ruled that, while there was an
element of nonverbal expression inherent in the practice,
“its communicative character [was] not sufficiently
distinct to warrant constitutional protection.”

F. Chilling Effect

Laird v. Tatum, 408 U.S. 1 (1972). Mere

investigation and data processing by government officials

which causes a “chilling” effect on the exercise of First

Amendment rights does not present a justifiable

controversy. See also Socialist Workers Party et al. v.

Attorney General of the United States, 419 U.S. 1314

(1974).

In Anderson v. Sills, 56 N.J. 210 (1970), plaintiffs

sued for a declaratory judgment and injunctive relief

alleging that the use of a reporting system by law

enforcement officials to gather information relating to

potential and actual civil disorders violated the

constitution. The Superior Court, Chancery Division,

granted plaintiff’s motion for summary judgment. The

New Jersey Supreme Court held that the injunction had

been improperly granted on the basis of the speculation

that police activities would deter the exercise of First

Amendment rights. There was no evidence of such

activities or of the deterrent effect, nor was there any

evidence of an intent to inhibit the exercise of First

Amendment rights. It is not required that injury is

experienced as a condition for a declaratory judgment suit

to vindicate First Amendment rights, but the prospect of

wrongful conduct must be tangible. The fact that First

Amendment freedoms may be chilled by police activity

is not pivotal, and these rights must be weighed against

the competing interest of the citizens. Pursuant to the

remand, the Appellate Division held that where the

forms used in intelligence gathering activity by State

Police and local agencies were no longer in use, the case

was moot. Also, assuming arguendo that the case is not

moot, the United States Supreme Court holding in Laird

v. Tatum, 408 U.S. 1 (1972), is dispositive in

establishing that the assailed police activity is permissible

and, therefore, plaintiffs have failed to state a claim.

In Wooley v. Maynard, 430 U.S. 705 (1977),

Jehovah’s Witnesses had religious objections to the motto

“live free or die” on their license plates. The Court held

that the State was barred from prosecuting them for

obscuring the motto on their license plates. The statute

required that the appellees use their private property as a

billboard for the State’s ideological message or suffer a

penalty. The First Amendment allows individuals to

refuse to foster ideas which they find morally

objectionable.