Elizabeth O’Nan lives alone on an 80 acre “island” of land she owns in the middle the Pisgah National Forest in northwestern North Carolina. O’Nan is 86 years old. Her property is accessible only by a small forest service road, over which she holds an easement. In December of 2010, the Forest Service charged O’Nan with blocking that forest road, in violation of 36 C.F.R. § 261.12(d), because she told a hunter that she owned the road and he had no right to use it.

O’Nan proceeded prose before a federal magistrate judge and was convicted. On appeal to the district court, O’Nan raised a first amendment defense to the charge. She argued, in essence, that the rule is constitutionally infirm because it permits punishment of protected speech based on viewpoint — that is, speech excluding hunters from the road. The district court reviewed for plain error and affirmed. The case is now before the Forth Circuit.

O’Nan’s position goes something like this. When she told the hunter he had no right to use the road, she engaged in constitutionally-protected speech. If so, the district court mischaracterized her speech as criminal interference with the use of a road. In holding that O’Nan could be sanctioned for what she said to the hunter, the court conflated protected speech and criminal conduct. On this theory, the two are distinctly different: while an agency may criminalize physically blocking a service road, it may not criminalize speech, even when the purpose of the speech is to stop people from using the service road.

To prevail on this argument, O’Nan would have to distinguish her case from the line of cases in which the Supreme Court has permitted the punishment of speech as an “illegal course of conduct.”

II. Discussion: Speech as an Illegal Course of Conduct

A. 36 CFR s. 261.12(d)

The road-blocking rule is a generally applicable law that is being applied to speech, but that on its face doesn’t mention speech. It was triggered against O’Nan by what she communicated. So we might call the rule content- based as applied, because the content of her speech triggered its application. This mechanism does not just restrict some speech more than other speech–most content-neutral laws do that. Rather, the rule applies to speech precisely because of the harms that supposedly flow from the content of the speech: threatening to have the hunter arrested for trespassing violated the road-blocking rule because it interfered with his use of the road.

In 1998, an Idaho district court upheld this regulation against a First Amendment challenge. The Ninth Circuit affirmed without comment. That case involved an environmental protestor who physically blocked traffic on a logging road. The protestor, Scranton, was found perched on top of a tripod structure in the center of the Forest Service road. The tripod stood thirty feet tall; near the top of the tripod a plywood platform supported Scranton. Forest Service officers used a “cherry picker” to elevate themselves to the platform level. As they did so, Scranton placed her arms inside a welded, L-shaped metal pipe attached to a tripod leg. She told the officers that she would not quit the tripod “until the logging stopped.” Forest Service officers attempted to remove Scranton’s arms from the pipe. When their efforts proved unsuccessful, they cut the strap securing the pipe to the tripod leg. After approximately twenty minutes, Scranton announced that her arms were going numb and that she was willing to leave the tripod platform. She was then removed and arrested.

Scranton argued that the language of the rule was unconstitutionally vague, and that a facial challenge was warranted because the rule implicated constitutionally protected conduct. The district court disagreed. First, it determined that the rule’s prohibition of “blocking, restricting or otherwise interfering” with the use of a Forest Service road did not reach a substantial amount of constitutionally protected conduct. Second, the court found that the regulation did not prevent the expression of First Amendment conduct in a multitude of other, lawful ways. Therefore, Scranton’s vagueness challenge had to be “examined in the light of the facts at hand.” Scranton’s conduct clearly fell within the scope of the regulation – she blocked the Forest Service Road by maintaining a giant tripod in the roadway.

By contrast, O’Nan’s conduct involved only speech. This difference, however, may not be enough to distinguish her case from the Supreme Court’s “speech as an illegal course of conduct” jurisprudence.

B. Giboney

“It has never been deemed an abridgement of freedom of speech,” Justice Black wrote for the Court in Giboney v. Empire Storage & Ice Co., “to make a course of conduct illegal merely because the conduct was in part carried out by means of language.” In subsequent opinions, the Court has characterized Giboney as stating that speech may be punished when it’s “brigaded with illegal action.” The Fourth Circuit described the Giboney principle as authorizing speech restrictions when the speech is tantamount to a “speech act.”

Giboney upheld an injunction against peaceful picketers who were trying to pressure a business “to agree to stop selling ice to nonunion peddlers.” Such an agreement, the Court said, would have violated antitrust law; therefore, enjoining such picketing did not violate the First Amendment. But the Giboney argument has also been used to justify a wide variety of speech restrictions:

(a) The DOJ and a court of appeals have recently reasoned that Giboney lets the government restrict books that may inform people how to violate the law, at least when the publisher intends that those books help people commit crimes. This “speech act” rationale goes something like this. If the speech in question is an integral part of conduct that the government otherwise is empowered to prohibit, it typically may be proscribed, since it is merely incidental that such “conduct” takes the form of speech.

(b) The Supreme Court described Giboney as supporting the proposition that “[a] man may be punished for encouraging the commission of a crime.” The Court cited as an example a 1915 case that upheld the punishment of a newspaper editor who endorsed nudism.

(c) Some courts have recently used Giboney to defend restrictions on doctors’ recommending medicinal marijuana to their patients.

(d) Courts have similarly used the “conduct not speech” argument to justify restricting speech that creates an offensive work environment.

(e) Judges have relied on Giboney to support restrictions on speech that urges political boycotts aimed at pressuring governments to change their policies.

(f) The dissent in Cohen v. California cited Giboney to argue that wearing a jacket containing the phrase “Fuck the Draft” should be constitutionally unprotected: “Cohen’s absurd and immature antic . . . was mainly conduct and little speech.”

These applications of Giboney seem confusing. This might be because the logic of Giboney itself is pretty confusing, and inconsistent with the logic of the more recent Supreme Court cases like Cohen, Brandenburg , and Claiborne Hardware. In particular, there are at least three different interpretations of Giboney’s ambiguous language that might bear on O’Nan’s first amendment claim, but none of them makes much sense.

1. “Course of Conduct” Referring to the Noncommunicative Harms of Speech

Modern Supreme Court case law has recognized a sort of conduct/speech distinction. Speech may be restricted because of harms flowing from its noncommunicative component (noise, obstruction of traffic, etc.)–which we might think of as a “conduct” element–but not because of harms flowing from its communicative component, the “speech” element. But this can’t be the distinction Giboney or the above cases that cite Giboney are using, or that could justify O’Nan’s conviction, since those cases all involve speech that’s restricted because of harms that flow from its content.

2. Illegal Course of Conduct Meaning Speech that Itself Violates a Law

Maybe we could explain the opinions that rely on Giboney by reasoning that the speech itself–picketing to achieve a certain result, publishing a book describing how to commit a crime, threatening hunters to stop them from using the forest road–violates a law, and in that sense becomes an illegal “course of conduct.” On this theory, speech that amounts to the commission of an independently illegal act, such as bribery, perjury, and some threats, is constitutionally unprotected because it “is properly treated as action, even if it consists solely of words.”

But the point of modern First Amendment law is that speech is often protected even though it violates a law restricting it. Public profanity (as in Cohen ), speech that violated a Sedition Act , and speech “encouraging the commission of a crime” (as in Cox ) would indeed be illegal courses of conduct under laws that prohibit such speech. Such laws, though, are obvious speech restrictions, and courts rightly evaluate them–and often strike them down–under the First Amendment.

A threat is no less speech, and no more action, than was speech that violated the Sedition Act. A threat is speech in a particular context, such as the beliefs O’Nan had about her property rights, but it is still communication that is punished because of what it communicates. Certain kinds of threats are clearly punishable, but only because they fall within an exception to free speech protection and not because they are somehow not speech.

3. Illegal Course of Conduct Meaning Speech That Violates a Generally Applicable Law

O’Nan’s conviction, like many cases the Giboney line, might best be explained on the grounds that the speech violates a generally applicable law that bans a wide range of conduct.183 On this interpretation, speech should be treated as conduct when it has the same harmful effects and it is covered by a generally applicable law that restricts all conduct that has those effects. This sort of argument, though it would support the application of the road-blocking rule against O’Nan, would reduce the Giboney principle to an approval of speech restrictions that are content-based as applied.

This point is not a trivial one. Such an interpretation of Giboney cuts against the very purpose of the content based / content neutral distinction: allowing content-based restrictions (whether facially content-based or content-based as applied) is likely to burden speech more than allowing content-neutral restrictions. Because a content-neutral law – for instance, a leafleting ban — can potentially apply to a wide range of speakers, it can’t even come close to driving certain views entirely from public debate.

On the other hand, a content-based restriction, whether facially content-based or content-based as applied, can outlaw most expression of certain facts or opinions. If a law, such as the laws in Schenck v. United States or NAACP v. Claiborne Hardware Co. , bans any conduct that may cause a certain harm, and persuading people to act in certain ways can cause that harm, then any viewpoints that have the potential for such persuasion–the draft is evil, blacks should boycott white-owned businesses– would largely be prohibited. Because the law focuses either on the content of the speech or on the harm that the speech causes, it can block the speech in all media. O’Nan could not persuade hunters not to use the road in any way – she could not send this message with pamphlets, or on the radio. She could not write it on a billboard or post it on a blog. Her message would always be illegal, because it could have the effect of discouraging the use of the road.

The Court has confronted cases where a law was content-based as applied. In these cases, either the Court held that the speech was constitutionally protected, or–if it held otherwise–the decision is now viewed as obsolete.

The Court’s the World War I-era cases Debs, Frohwerk, and Schenck, upheld the criminal punishment of antiwar speech. In those cases, the defendants’ statements had violated a generally applicable provision of the Espionage Act, which barred all conduct–speech or not–that “willfully obstructed the recruiting or enlistment service of the United States.” These cases are now generally seen as wrongly decided. Under modern First Amendment law, courts would overturn convictions for antiwar leafleting or speeches, and would treat the law as content-based, because it is the content of such antiwar speech that causes the interference with the draft.

More broadly, if generally applicable laws were immune from First Amendment scrutiny, the government could suppress a great deal of speech that is currently constitutionally protected, including advocacy of illegal conduct, praise of illegal conduct, and even advocacy of legal conduct. For example, a general ban on “assisting, directly or indirectly, conspiracies to overthrow the government” could prohibit advocacy of overthrow as well as physical conduct like making bombs: Advocacy could assist by persuading people to join the rebellion. A ban on “assisting interference with the provision of abortion services” could ban speech that praises or defends anti-abortion blockaders or vandals, and not just actual blockading or vandalism. A ban on “conduct that interferes with the enforcement of judicial decrees” may be applied to speech that criticizes judges or judicial actions, on the theory that such criticism may lead people to lose respect for courts and thus to disobey court orders.

The speech in these examples, like O’Nan’s speech, could bring about the harms that the generally applicable law is trying to prevent. O’Nan’s speech may interfere with the use of the road, an effect that is unquestionably punishable if it were brought about by a giant tripod structure rather than communication. But the idea behind the rejection of Schenck, and of the adoption of the Brandenburg v. Ohio rule , is that the government must generally tolerate speech even when its persuasiveness or the informational content could lead to eventual harm.

Similarly, in NAACP v. Claiborne Hardware Co. the Court held that speech constituting tortious interference with business relations may nonetheless be constitutionally protected. Tortious interference covers a variety of conduct, not just speech. But when the interference flows from the persuasive or informative effect of speech–for instance, when the speech in Claiborne Hardware persuaded people to boycott a business, publicized the names of people who weren’t complying with the boycott, or persuaded others to ostracize people who refused to join the boycott– courts treat the tort as a speech restriction.

In short, O’Nan faces an uphill battle. Her speech did not express a view on a topic of public debate. Rather, she made a purposeful threat that misrepresented the law and interfered with a public right. Because her threat was likely to have the same harmful effects as a physical impediment blocking the road, the court will probably classify her speech as an illegal course of conduct.

O’Nan’s best argument is that because the regulation is content-based as applied to her, it should be presumptively unconstitutional, just as facially content-based laws are presumptively unconstitutional. Her speech does not fall clearly into an exception to protection, so the presumption may only be rebutted if the restriction passes strict scrutiny. But generally speaking, when a law punishes speech because its content may cause harmful effects, that law should be treated as content-based.