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56. May the protester constitutionally be convicted?
A protester entered an IRS office during business hours. He denounced the income tax and set fire to pages from his copy of the Internal Revenue Code. The fire was extinguished before it caused any other damage. The protester was arrested and charged with violating a state law that prohibited igniting a fire in a public building. He claimed that his prosecution was unconstitutional under the First Amendment.
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A state may prohibit conduct in certain contexts, even if it is marginally related to First Amendment expression, if the goal of the law is unrelated to the suppression of free expression, and the goverment has a substantial interest at stake. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City of Erie v. Pap's A.M., 529 U.S. 277 (2000).
D is correct. The protester's burning of the tax code qualifies as expressive conduct protected by the Free Speech Clause of the First Amendment because: (i) the protester intended to communicate a message; and ii) the audience was likely to understand the communication. However, even though the burning of the tax code is expressive conduct, the goal of the law is unrelated to the regulation of speech. The state's interest underlying the law that the protester violated (preventing fires in public buildings) is unrelated to the message communicated by the burning of the tax code. As a result, a court will not subject the state law to strict scrutiny. Instead, the court will uphold the application of the law to the protester because it is narrowly tailored to further a substantial government interest, a standard of justification that this law should satisfy easily.
A is incorrect. Although the protester's burning of the tax code does amount to expressive conduct pursuant to the freedom of speech under the First Amendment, the statute under which the protester is being prosecuted was not aimed at suppressing free speech. Rather, the statute is aimed at public safety. Subsequently, the fact that the conduct falls within First Amendment protections will not automatically prevent prosecution for violating the statute.
B is incorrect. On the contrary, the government's interest in public safety is infringed upon by the setting of a fire in a public place. The legitimacy (and substantiality) of this governmental interest in preventing fires in public buildings is not undermined by the fact that the protester burned his own copy of the tax code.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. Regardless of whether the protester's actions are characterized as conduct or speech, both of which fall within the bounds of the First Amendment right to free speech, the applicable statute is based on a valid, important governmental interest that is unrelated to free speech and the prohibition on fires is no greater than necessary to carry out that interest.