Public display of swastika in the US The Nazi swastika evokes emotional (fear, anger); is there a “bright line” in which this symbol crosses that public display of said symbol would result in an arrest in the US? Or is the symbol’s display protected under the first amendment? Sample context: https://www.cnn.com/2020/07/28/us/minnesota-walmart-nazi-masks-antisemitism-trnd/?hpt=ob_blogfooterold
In US Law, banning speech based on its content is called &quot;Content-based&quot; speech regulation (shocking, I know), as opposed to &quot;Content-neutral&quot; speech regulation like requiring all protests to end before a specific time. Content-based speech regulation can be constitutional if it passes strict scrutiny, but in the case of banning swastikas, it would fall under an even narrower subset of content-based speech regulation called &quot;viewpoint regulation.&quot; I haven't found a case where the swastika or Nazi flag was banned in particular, but we can find reasoning that appears to safely protect the peaceful display of the Nazi flag and ideology from government restriction in Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972), a case in which Chicago banned picketing within 150 feet of a school except in the case of labor disputes related to the school. The Supreme Court found that this amounted to viewpoint-based discrimination, writing in the majority opinion: But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an &quot;equality of status in the field of ideas,&quot; and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone. As with all rights restrictions, a particular restriction may be Constitutional if it passes &quot;strict scrutiny,&quot; namely, it: is necessary to a &quot;compelling state interest&quot;; is &quot;narrowly tailored&quot; to achieving this compelling purpose; and uses the &quot;least restrictive means&quot; to achieve the purpose. In general, a ban on the peaceful display of Nazi imagery or promotion of Nazi ideas would fail the first test, as the government does not have a compelling interest to suppress ideas which might be distasteful to some or even the majority of people. I have seen an argument that because the Nazi regime's stated goal included genocide, that promoting that ideology amounts to advocating violence. Speech which advocates violence or criminality may be criminalized, but only under a specific &quot;imminent lawless action&quot; test expressed in Brandenburg v. Ohio: Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. This case was brought against a KKK member who advocated various violent acts at a rally. The main distinction is that his speech did not call for specific violence, but merely advocated for it in general. This almost exactly mirrors the rationale for banning the Nazi ideology based on its advocacy of violence, and shows that a ban on such grounds would be unconstitutional. &quot;Imminent&quot; was clarified in Hess v. Indiana to mean that the action must be intended to produce actual lawless action at a specific point in the future, not simply advocate for it in general. Hess was a protester who was being forced off a street by police, said &quot;We'll take the fucking street later&quot; and was convicted of disorderly conduct for it, which the court reversed as his statement &quot;amounted to nothing more than advocacy of illegal action at some indefinite future time&quot; and was therefore protected by the First Amendment.
It is entirely legal to discriminate on arbitrary grounds. What is not legal is to discriminate on the basis of a protected category, for example race. The law say that you cannot favor or disfavor a customer because of their race. Federal law specifically prohibits discrimination on the basis of race, color, religion, or national origin, but not age or gender (disability is more complicated). Moreover, the grounds are not arbitrary. The establishment is at legal risk if a customer does not wear eye-protection, and you have no right to compel them to assume that risk: it's a perfectly normal business decision. The law states that "Customers are not allowed to use a tanning device unless the customer uses protective eyewear", and verifying that you have such eyewear is the minimal way of assuring compliance with the law.
The main difference distinguish Martinez's conviction from other flag burning convictions is that it wasn't his flag. If you were to steal and burn my American flag, you too could be prosecuted. There is a little issue of protected class, because he was convicted under the hate crime statute, not just plain arson. In Iowa the protected classes are: race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability, or the person’s association with a person of a certain race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability If you burned my Tall People's Club flag, that is not a protected class. If you burned my American flag because I am expressing my Americanness, that's a hate crime.
One could make a First Amendment challenge to mask requirements through either the Free Exercise Clause or the Free Speech Clause. Neither approach is likely to succeed. Because going without a mask is not recognized as &quot;expressive conduct,&quot; it is not protected by the Free Speech Clause A free-speech challenge would likely also fail for two reasons. As you correctly suggested, the First Amendment protects more than just speech, also protecting &quot;expressive conduct,&quot; such as flag burning, dancing, and wearing armbands. Of course, literally any conduct could have some secret expressive meaning in the mind of the person carrying out -- &quot;I shot him in the face to say I didn't like him&quot; -- so we have a question of where to draw the line between what expressive conduct does and does not receive the strong protection the First Amendment affords to speech. The Supreme Court detailed that test in Texas v. Johnson, 491 U.S. 397 (1989), and it's now generally formulated as asking two questions: Did the speaker actually intend to convey a particularized message through his conduct? Are the people who see the conduct likely to understand that message? At the Sturgis rally, or at the statehouse protests over COVID restrictions, or some similar event that is explicitly opposed to masks, refusing to wear a mask goes a long ways in communicating an opposition to the mask requirements. But in the vast majority of cases, no one you run into in the normal course of daily life is likely to recognize that you are not wearing a mask because you are trying to communicate a message, let alone decipher what that message is. Do you believe that mask mandates are tyranny? That COVID-19 is a hoax? That life is meaningless and we should all welcome the hastening of human extinction? None of that is clear to the average viewer, which is who the courts are going to be concerned with. Because refusing to wear a mask is generally insufficient to convey a specific message, I'd argue that it is not expressive conduct. Because mask requirements are neutral as to religion and generally applicable, they do not violate the Free Exercise Clause. A religious challenge (&quot;My religion prohibits wearing masks&quot;) is likely to fail because &quot;the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'&quot; Employment Div. v. Smith, 494 U.S. 872, 879 (1990). This means that if the mask ban generally applies to everyone and you just happen to belong to a religion that forbids mask-wearing, you can't use that affiliation to escape the law's requirements. (The outcome may be different when you run the problem through the Religious Freedom Restoration Act or state-level analogues, which impose more stringent tests for infringements on religious liberty.)
The First Amendment is absolutely relevant to the question (in a public school which is subject to the First Amendment, because it is a governmental entity), although it isn't the end of the story. Generally speaking, a school can establish reasonable rules and regulations for its students and punish those violations with punishments such as detentions, suspensions, expulsions, changes in grades on assignments or in classes, denial of eligibility to participate in extra-curricular activities or to receive school honors, and similar sanctions. Generally speaking, violations of school rules cannot result in criminal punishments or civil liability not authorized by other laws, and profanity is something that cannot be prohibited – at least in cases involving adults. Minors have First Amendment rights to express opinions, although they are diminished in a school setting, and while literally speaking profanity is part of the content of speech, it is often analyzed as a permissible &quot;time, place or manner&quot; restriction instead, especially when minors are present. Profanity also covers a range of conduct. Schools have the greatest authority to regulate speech when it is disruptive to the orderly operations of the school, or threatening. Profanity used to provoke or threaten someone, such as the use of a racial slur or an offensive statement about someone's family, could potentially be punished severely based not simply on what was said but because it is part of a larger context of aggression. In contrast, schools might potentially exceed their legal authority to prohibit profanity defined in such a way as to prevent students from a particularly ethnicity from speaking in ordinary non-provocative terms to each other. The N-word directed at an African-American student in a predominantly Hispanic school by someone reputed to be a gang leader with an intent to provoke or threaten the African-American students would be well within the school's right to prohibit and punish severely. But punishing two African-American students who are friends for using the same word in a friendly context like &quot;Hey, N- how you doing?&quot; &quot;I'm doing better than fine, N-&quot; might even be construed as discriminatory if punished, and deemed to be beyond the authority of the school to prohibit at all, or with anything more than the most minimal sanction. Limitations on profanity are also more suspect from a First Amendment perspective when used in connection with conduct that is intended to be expressive, such as an art project, or a monologue chosen for a drama class from published stage plays, novels and poems, or when used in connection with protests and political activity. Often the standard by which school officials are judged in court when a school punishment for some conduct or another is challenged, is whether the school officials abused their discretion and part of that analysis is proportionality. A school official can be comfortable that issuing a detention to a student, or assigning the student to some undesirable task like picking up litter from a school yard during recess for saying something like &quot;shit&quot; or &quot;fuck&quot; will not be judged to be an abuse of discretion. But, a court might very well overturn a school's exercise of its discretion to punish a student if a student were expelled for saying something like that in a manner that was not part of a more pervasive pattern of disregard for authority and disruptive behavior. Another factor that influences whether a rule like a ban on profanity is an abuse of discretion to punish in a particular manner is the extent to which there was advanced notice that this was prohibited. If the school has a clear rule that is familiar to everyone in the student body stating in advance what is prohibited and what punishments are authorized under particular circumstances, that rule is more likely to be held not to constitute an abuse of discretion, than a severe punishment of a student who has no real advanced warning that the conduct is not allowed. Similarly, the intent of the student is relevant. If a student uses profanity or an offensive term (e.g. &quot;fag&quot;) not knowing that it is considered profane or offensive, either out of ignorance perhaps because other students misled him or her about what a word meant, anything more than a minimal punishment would be an abuse of discretion, while even relatively minor use of profanity, calculated and intended to have great negative effects in the context in which it was used, resulting in a severe punishment, might not be an abuse of discretion. In between, and perhaps justifying only an intermediate punishment, at most, without constituting an abuse of discretion, would be a use of profanity that isn't naive or innocent, but isn't calculated for maximum negative effect either, and just &quot;pops out&quot; based upon what is normal in a student's home life or previous experience even though it is contrary to the norms of this particular school and the student would have realized that upon further reflection. Is there detailed case law or a statute that spells this out, in great detail? No. Some of this is embedded in custom and social norms that are familiar to judges (usually in the context of what was historically known as a &quot;certiorari petition&quot; arising from a local government quasi-judicial decision). But, I do think that this answer relatively accurately captures how a seemingly vague &quot;abuse of discretion&quot; review standard for school disciplinary actions for students would be likely to play out in real life, and those expectations absolutely do influence how school administrators and teachers impose discipline, in practice.
I have bad news. California's vandalism law prohibits maliciously: defacing property with graffiti defacing property with inscribed material damaging property destroying property Chalking the sidewalk probably doesn't sound very malicious, but maliciousness includes “an intent to do a wrongful act, established either by proof or presumption of law.” So the questions is whether you intended to do a wrongful act -- meaning that you intended to do the act, which happens to be wrongful, not that you intended to act wrongfully. So unless you drew on the sidewalk accidentally, the malicious-intent requirement isn't going to help you. So then you have to ask if your conduct is described by the statute. In Mackinney v. Nielsen, the Ninth Circuit said that sidewalk chalking did not violate the law, but California has since amended the law to add the "deface with graffiti" language. I haven't seen any chalk cases since then, but another case, In re Nicholas Y., from the Second District, dealt with someone who used a marker on a window. He argued that it could be easily erased, but the court said it was still vandalism because: it "mars the surface with graffiti which must be removed in order to restore the original condition" the definition of "deface" "does not incorporate an element of permanence" "marring of the surface is no less a defacement because it is more easily removed." Given that language, I'd argue that the vandalism statute includes sidewalk chalking. But one important element here is that most sidewalks are owned or controlled by the government, so any effort to restrict "expressive conduct such as writing with chalk" (Guilliford v. Pierce County) expressive activity" there must comply with the First Amendment. The government has varying degrees of latitude on the restrictions it can impose, depending on the character of the space involved. So in a courtroom, whose function is incompatible with free-wheeling public debate, a judge can set quite a few rules about how people may speak. But sidewalks are considered a "public forum," where the government's ability to regulate speech is a lot more limited. So how does the First Amendment apply? There's a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.'s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test: The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government's interest in maintaining the aesthetic appeal of the area in front of the White House and didn't restrict any speech that does not deface public property. The law must leave open ample alternatives for communication, meaning that even if you can't express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets. There's an interesting wrinkle there in terms of whether the interest in aesthetics is heightened because we're talking about the White House, but generally speaking, aesthetic concerns can still justify speech restrictions. So the bad news is that unchaining your inner six-year-old may subject you to criminal liability. That leaves the question of whether you want to unleash your inner teenager and do it anyway. This could help put you in a frame of mind for making the decision.
Note that the original Stolen Valor Act of 2005, which made it an offense to falsely claim to have been awarded any US military medal or decoration, or to wear such without authorization, was ruled unconstitutional in United States v. Alvarez, 567 U.S. 709 (2012). The Stolen Valor Act of 2013 makes this an offense only if done for profit. As described in this Law.se Q&amp;A, United States vs Hamilton (2012) limited the law against wearing military uniform without authorization to cases where it is done with intent to deceive (at least in the Fourth Circuit, but I suspect that the same rule would be applied throughout the country).
It depends. Symbols which are not entitled to trademark protection in a market, usually because they are merely descriptive or generic or functional, are in the public domain and may be used by anyone, but a person using a descriptive or generic symbol can't prevent someone else from using the same symbol to promote their own business. For example, I can use the scales of justice symbol to promote my law practice on my law firm website. But, since that symbol is a generic one in the law firm market, I can't sue a competing law firm from using the same symbol on their website. The essence of a protectable trademark that an owner of can legally exclude competing firms in the same market from using, is that your firm manages to infuse into the distinctive affectation for which trademark protection is claimed with what is called "secondary meaning" to the words or image or other manifestation of the trademark when it is used in the market where the owner of the mark wants to obtain trademark protection. For example, descriptive trademarks are not eligible for trademark protection and are instead in the public domain and can be used by anyone in a market where the mark is descriptive. You can't gain a legally protected right to use the word "liquor" to describe a business that is engaged in selling liquor, and you can't gain a legally protected right to use the words "doughnut shop" for a business that sells doughnuts. But, if you use the words "doughnut shop" to describe a business that sells liquor or bras, rather than doughnuts, and those words come to be associated in the mind of the public with your particular chain of liquor stores or lingerie stores, then the words "doughnut shop" have acquired a "secondary meaning" which can be legally protected by trademark law allowing you to deny other businesses the right to use that trademark in the economic market where it has acquired a secondary meaning. (The scope of an economic market can be both geographic and conceptual related to the nature of the products sold. The manner in which an economic market is determined for a mark is beyond the scope of this answer or the original question.) The analysis with respect to symbols is analogous. You can't gain legal protections for using a common symbol in a manner that merely conveys its pre-existing common meaning. For example, if you use the hashtag sign # to mean "number" or "pound", that probably cannot be legally protected by trademark law. But, suppose that one particular firm (e.g. Twitter) uses the hashtag sign in a novel sense associated exclusively with a service that this particular firm provides, in a manner that is not semantically derived from its pre-existing meanings. In that situation, the firm might very well be permitted to claim trademark protection for the use of that common symbol in this new sense that has a "secondary meaning", which associates that symbol in a certain context exclusively with that firm, in the market where that firm does business. Similarly, you could probably not gain trademark protection for the common highway "yield sign" design to mean "yield" or be careful or some other similar semantic meaning. But, if you used the common highway yield sign to sell spaceships, and people came to associate that symbol with the spaceships sold by your particular firm, rather than with spaceships in general, you might be able to secure trademark protection for the yield sign symbol in that marketplace. It is easier to develop a "secondary meaning" for a distinctive and particular stylized presentation of either words in a particular script, or a variation on what would otherwise be a common symbol, than it is to develop a "secondary meaning" for generic words or a generic symbol that is has an existing meaning in other contexts. For example, while Apple could probably not have claimed trademark protection for an image of a clock spinning clockwise while the user has to wait while the computer is thinking about something, Apple's distinctive variant of this image (which some people call the "pinwheel of death") might very well be eligible for trademark protection.' The AppleOS pinwheel of death