Government's Authority to Constitutionally Prohibit Certain Conduct Even If It Incidentally Affects Speech
The following case demonstrates, the government may constitutionally prohibit certain conduct even if it incidentally affects speech:
In State v. McLamb, 188 Ariz. 1, 932 P.2d 266, 271-72 (Ariz. Ct. App. 1997), the defendant challenged on First Amendment grounds his conviction for the unauthorized wearing of a city's police insignia under an ordinance similar to section 843.085.
The defendant was a retired Phoenix police officer.
He was arrested operating a booth at a gun show while wearing his police "retirement uniform" with its official department insignia shoulder patches. Id. at 268.
The city ordinance at issue made it unlawful "for any person to wear a fireman's or policeman's badge or insignia, or the badge or insignia of any public officer or inspector of the City when not properly authorized to wear such badge or insignia." Id. at 269 (quoting Phoenix, Ariz., City Code 23-21).
Relying on Schacht, the court rejected the defendant's claim that the ordinance facially violated the First Amendment's guarantee of free speech.
The Court noted that, unlike the actor exemption in Schacht, the ordinance was not content-based and thus "prohibited the unauthorized wearing of an official insignia without regard to a particular expressive activity or the political viewpoint communicated by the wearer." McLamb, 932 P.2d at 272.
Because of the context in which he wore the insignia, however, the court determined that his conduct was expressive.
McLamb had adorned his gun show booth with banners declaring, e.g., "'Police Support Your Right to Bear Arms," and testified that he wore the uniform to convey to others that he was a former officer who advocated a particular, political agenda. Id. at 273.
Noting that on its face the ordinance was unrelated to the suppression of free speech, however, the court applied O'Brien and held the ordinance valid. 932 P.2d at 274.
The court also held that the ordinance was not overbroad.
The law was not directed at a particular group, did not censor any viewpoint, and did not "significantly infringe" on the First Amendment right of free speech. Id. at 275 (citing Broadrick, 413 U.S. at 616).