Academic journal article South Dakota Law Review

Doctrinal Development or Devolution?: An Examination of the Incidental Regulation Test from Texas V. Johnson through Holder V. Humanitarian Law Project

Academic journal article South Dakota Law Review

Doctrinal Development or Devolution?: An Examination of the Incidental Regulation Test from Texas V. Johnson through Holder V. Humanitarian Law Project

Article excerpt

In 1968, the United States Supreme Court proffered a new Track Two test, via Texas v. Johnson, with the ability to constitutionally validate government regulations that incidentally burdened free speech rights. Over the past fifty years, this "incidental regulation test" has volleyed back and forth between being either a pro-plaintiff or a go-to government doctrine. In the 2010 Holder v. Humanitarian Law Project case the Court refused to apply the incidental regulation test despite the government's request and the test's relevance to the matter at issue. The Court's departure from the incidental regulation test's current evolutionary status and generally accepted constitutional principles was incorrect and inappropriate. As a result, more questions than answers have been generated as to the incidental regulation test's future utility and application.


The United States Constitution's First Amendment guarantees are the most highly prized, coveted, and guarded of fundamental rights. (1) When government-enacted regulations, whether local, state, or national, infringe upon these freedoms, litigation becomes inevitable. (2) The standard upon which the regulation is analyzed is determined by whether the regulation is content-based or content-neutral. (3) This track-based tug-of-war becomes the determinative factor as to the level of contravention one's First Amendment rights will suffer. (4)

First, this article explores the factual and procedural history of U.S. v. O'Brien, (5) which spawned the incidental regulation test. (6) A brief discussion of the incidental regulation test's progression from inception to 1989 follows. (7) This note then details the factual and procedural history of Texas v. Johnson, (8) which refined the incidental regulation test's applicability. (9) It continues with a detailed survey of cases that explore the incidental regulation test's development post-Johnson. (10) Next, the article details the factual and procedural history of Holder v. Humanitarian Law Project. (11)

The article's second section provides an analysis of the test's refinement and conversion from a government-preferred to a plaintiff-captured doctrinal standard. (12) A discussion as to the improper application of the incidental regulation test, including whether the test's proper application would have changed Holder s ultimate holding, follows. (13) Additionally, this note will illustrate the proper application of the incidental regulation test to the Holder facts and how, in its appropriate function, it would have facilitated a stronger plaintiff position. (14)



David Paul O'Brien, along with three colleagues, burned his Selective Service registration form on the South Boston Courthouse steps on March 31, 1966. (15) The crowd that witnessed the burning subsequently attacked O'Brien and his friends. (16) Three Federal Bureau of Investigation ("FBI") agents were among the crowd members and assisted O'Brien to safety within the courthouse. (17) O'Brien informed the FBI "that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law." (18)

O'Brien was indicted under Title 50, App., United States Code, section 462(b). (19) This statute had been amended in 1965, with its added language rendering O'Brien's registration card burning illegal. (20) Specifically, the amendment made it an offense for any person "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate." (21)

At trial, O'Brien challenged the amendment on free speech grounds. (22) "O'Brien argued that the 1965 Amendment prohibiting the knowing destruction or mutilation of certificates was unconstitutional because it was enacted to abridge free speech, and because it served no legitimate legislative purpose. …

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