Interesting new 1st Am expressive conduct case

[Bryan Wildenthal]

I have inserted below some comments on Tobias's posting, and also, at the
very end, some comments on Eugene's posting and the underlying case.

Bryan Wildenthal
Thomas Jefferson School of Law

 -----Original Message-----
From: Tobias Barrington Wolff [mailto:tbwolff at UCDAVIS.EDU]
Sent: Monday, April 29, 2002 4:19 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Interesting new 1st Am expressive conduct case
....

 -       I'm not sure what a "time, place and manner restriction on
expressive conduct" means.  If the drafters of the statute had the
expressive features of target shooting in mind, and passed the statute as a
means of restricting expressive shooting, then the statute fails the
threshold requirement of O'Brien.  O'Brien requires that the statute
regulate conduct "without reference to expression" -- not "without reference
to a particular message."  If the statute said, on its face, "No shooting
for expressive purposes" or even, "No shooting, including for expressive
purposes" -- without specifying Bin Laden or George W. as the target of
choice -- it would still fail the threshold requirement of O'Brien.  Now,
such a statute might well be a legitimate time, place and manner restriction
-- content-neutrality does satisfy the threshold requirement there -- but
the doctrinal requirements of such a restriction (and the underlying
interests that it serves) are different from those embodied in O'Brien,
despite the persistent tendency of the Supreme Court and lower federal
courts to conflate the two.

Bryan says:  I'm not sure I agree with Tobias on this (though I might well
be wrong).  A statute saying "no shooting, even for expressive purposes" is
the equivalent of what the Court upheld in O'Brien ("no draft card burning,
even for expressive purposes").  I think O'Brien analysis and TPM analysis
are basically the same thing, although somewhat different issues arise in
application, depending on whether it's the unconventional form of the
expression that the govt seeks to regulate as harmful (the O'Brien or
flag-burning scenario, and the one presented by the shooting target case),
or just the noise level, crowding, timing, etc. of fairly conventional
expression in a public place (the classic TPM scenario).

        The pertinence of all of this to Swift is illuminated by Eugene's
questions.  The ban on shooting human figures may well leave open "ample
alternative avenues of expression" -- the requirement of a time, place and
manner restriction.  Expressive shooters can probably express themselves in
equally symbolically effective ways without honing their homicidal skills.
But, as Eugene suggests, the ban on shooting human figures may well impose
incidental restrictions on speech that are "greater than is essential to the
furtherance of" the government's interest -- the O'Brien requirement -- even
under the denuded version of narrow tailoring that the Court has since
applied in expressive conduct cases.

        O'Brien and the time, place and manner cases ask different
questions, and for good reasons.

-- T

Bryan says:  I think they do, or should at least, ask and answer the same
basic questions:  (1) Is the govt pursuing a legitimate
health/safety/welfare interest unrelated to expression of ideas [if not, go
to strict scrutiny], and (2) if so, is the restriction reasonably narrowly
tailored and leaves open ample alternative channels to express whatever
ideas were sought to be expressed by the troublesome conduct?  It's true
that O'Brien analysis does not have a formal "ample alternatives" prong.
But I think that was implicitly accounted for in the Court's analysis, and
Justice Harlan's concurrence specifically noted that as a potential concern.
As a practical matter, in "unconventional method of expression" ("symbolic
conduct") cases there are almost always, by definition, ample alternative
ways to express the ideas in question, such as by more conventional means of
expression, speaking, printing, parading in the park with a sign, etc.  The
first two numbered prongs of the O'Brien test (pertaining to the govt's
power and interest) basically collapse into the first standard prong of TPM
analysis.  The third prong of O'Brien, as I tell my students, is really the
FIRST threshold question to resolve, namely is the govt targeting ideas or
some non-expressive purpose -- that's the hinge that determines whether
O'Brien/TPM analysis even properly applies in the first place, or whether
the court should instead apply strict scrutiny (as happened in the
flag-burning case).  The fourth prong of O'Brien is basically the second
(narrow tailoring) prong of TPM analysis.  The third prong of TPM (ample
alternatives) is the "missing prong" of O'Brien discussed in Harlan's
concurrence and not likely to be of practical significance in a "symbolic
conduct" case.  In sum, I think the courts have needlessly confused the
doctrine, but in a way somewhat different than Tobias suggests.  I think
courts should do MORE to merge and clarify O'Brien and TPM analysis -- and,
while they're at it, restore the narrow tailoring prong, so sadly diluted in
cases like Ward v Rock Against Racism (1989), and avoid the horrendously
confusing misadventure of blending O'Brien/TPM analysis with the nonsensical
"secondary effects" Renton doctrine, see Erie v Pap's AM, etc -- but, as the
saying goes, that's a WHOLE nother story....


At 03:21 PM 4/29/2002 -0700, you wrote:



        Gun Owners' Action League, Inc. v. Swift, 284 F.3d 198 (1st Cir.
2002),  <http://laws.findlaw.com/1st/002357.html>
http://laws.findlaw.com/1st/002357.html, upheld a Massachusetts law that,
among other things, barred people at certain ranges from "shooting at
targets that depict human figures, human effigies, human silhouettes or any
human images thereof, except by public safety personnel performing in line
with their official duties."   Plaintiffs challenged this on First Amendment
grounds, citing for instance "a target with the image of Adolph Hitler on
its front, and an account of Hitler's restrictions on firearm use on the
back.  Those who buy the target shoot at the image of Hitler in order to
express their opposition to tyranny and restrictions on gun use, and other
political messages."

        The court rejected this argument, on the following grounds:

No court has recognized target shooting as a constitutionally protected form
of expression.  The plaintiffs argue that they are engaged in "expressive
conduct," like the flag-burning protected by the Supreme Court in Texas v.
Johnson, 491 U.S. 397 (1989).  Such conduct is entitled to First Amendment
protection when it evinces "[a]n intent to convey a particularized message .
. . [and] the likelihood [is] great that the message would be understood by
those who viewed it."  In response to this argument, we follow the lead of
O'Brien and AIDS Action Committee, assuming for the purpose of the
content-neutral/content-based analysis that the target shooting at human
figures described by the defendants is expressive conduct entitled to some
degree of First Amendment protection.

"The principal inquiry in determining content neutrality . . . is whether
the government has adopted a regulation of speech because of disagreement
with the message it conveys."  Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989).  Here, the defendants assert that the Act's purpose was to stop
target practice that arguably increases the practicer's capacity to shoot
human beings, not to prevent the potentially expressive conduct engaged in
by some of the plaintiffs. . . .  There is an obvious connection between the
Commonwealth's interest in preventing gun fatalities and its decision to
restrict the shooting practices of certain gun clubs.  A person who has
practiced shooting at a human-shaped target will likely be more proficient
at shooting humans than a person who has had to practice at a circular
target.  This rationale is a believable, reasonable, content-neutral
justification for the provision. . . .

Since this restriction on the time, place, and manner of expressive conduct
is content-neutral, it "trigger[s] an intermediate type of scrutiny . . .
[and] will be upheld as long as [it is] 'narrowly tailored to serve a
significant governmental interest, and allow[s] for reasonable alternative
channels of communication.'"  The restriction does serve a "significant
governmental interest."  It aims to prevent those who do not have a license
for using large capacity weapons from refining their skills with such
weapons by shooting at targets depicting humans.  The state has a particular
interest in preventing those unlicensed to use large capacity weapons from
becoming proficient at shooting humans with such weapons.


The restriction on shooting at targets depicting human figures is also
narrowly tailored.  As the defendants observe in their brief, the
restriction "applies only in Class A licensed clubs because those are the
only places where a person who does not have a license for large capacity
weapons may shoot such weapons." . . .

        I wonder, though, whether this can be right.  There are two kinds of
targets that depict human figures -- (1) sillhouette targets, which are
usually waist-up pictures, either highly stylized (a sillhouette with no
details) or depicting some details, such as a face or clothes or a gun of
their own, and (2) face targets.  My guess is that the great majority of
Hitler targets are face-only; certainly the Bin Laden targets that I see at
my range in California are that way, as were the Khomeini targets that I
used to see on occasion in years past.

        How can shooting at a face target with a bulls-eye superimposed
possibly "refine [a shooter's] skills" more than shooting at just a
bulls-eye target?  First, virtually no-one who's trained to shoot will ever
shoot, except possibly in sniper contexts, at someone's face -- it's too
small a target, which is why one is taught to shoot at the body.  Second,
even if one does want to shoot at someone's face, I can't see how experience
with a face target can make any difference compared to experience with the
normal bulls-eye target.

        Now maybe shooting at a sillhouette target is different; but I
thought that the "narrow tailoring" required by O'Brien and Ward required
that the law not be overinclusive -- the law can't punish a wide range of
expressive conduct in order to prevent a harm that is implicated only by a
subset of that conduct.  It seems to me that this would be an excellent
example of an overinclusive law, overinclusive as to face targets though not
sillhouette targets.  Am I missing something here?

        (Incidentally, sillhouette targets of course have ample legitimate
purpose beyond just entertainment; "proficien[cy] at shooting humans" is an
important skill for those who keep a gun for self-defense, which is lawful
throughout the U.S., and lawful as to handguns everywhere except for a
handful of cities, mainly Washington and Chicago.  But the discussion above
doesn't rely on this argument, and assumes that the government has an
important interest in discourage such as proficiency even if the great
majority of those who acquire such proficiency do so for lawful purposes.)

        Eugene

Bryan says:  I agree with Eugene that this law is of VERY dubious
constitutionality, at best. The govt's alleged interest sounds weak and
contrived to me.  Is there really that much of a discernible difference in
shooting/aiming skills depending on the type of target used in practice?
Someone capable of hitting the bullseye on an abstract target would surely
be able to nail a person with a head shot.  I think the inference is almost
irresistible that this restriction is in fact related to the expression of
ideas -- namely, the perceived offensiveness, to many, of using human images
for target practice, and the notion that this might promote or countenance
the desirability or propriety of shooting actual humans on occasion.  As
such, this becomes a fairly easy strict scrutiny case analogous to the
flag-burning decision.  In any event, even if viewed as
expression/content-neutral, I don't see how this law could pass any
appropriately sturdy application of the narrow tailoring requirement under
O'Brien/TPM (if there's anything left of that requirement after Ward v Rock
Against Racism).   Aside from the obvious overinclusiveness Eugene notes,
the law is ridiculously underinclusive and pointless.  Stopping people from
using human images for target practice, thus perhaps slightly reducing at
the margin their targeting skills, is an incredibly poor fit with the govt's
ultimate interest here in stopping people from shooting actual humans, an
interest far more effectively and precisely served by the laws on murder and
unlawful assault.  (Though, as Eugene notes, there are situations in which
shooting humans is lawful, and so honing skills at doing so might actually
serve a legitimate purpose.)

I agree with Tobias that a litigant would have to either demonstrate a bona
fide expressive purpose for their own target practice, or make some kind of
overbreadth argument.

By the way, I hate guns and am not at all personally sympathetic to pro-gun
legal arguments.

It's interesting, this case in combination with the South Carolina
body-tattoooing case a few months ago, represent a series of factually very
juicy symbolic conduct issues, which the courts (in my view) are getting
REALLY wrong.

Bryan Wildenthal
Thomas Jefferson School of Law


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