COR439- Flag Burning, Fighting Words

Stomberg v. California

1931 Ruled that a California law banning a red flag was an unconstitutional violation of the 1st and 14th Amendments; precedent for non-verbal speech

Texas v. Johnson

Background • 1984- in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag to protest against Reagan administration policies. • Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. • After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. Question • Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? Conclusion • 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. • The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. • The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

United States v. Eichman

Background • In 1989, Congress passed the Flag Protection Act which made it a crime to destroy an American flag or any likeness of an American flag which may be "commonly displayed." • The law did, however, allow proper disposal of a worn or soiled flag. • Eichman set a flag ablaze on the steps of the U.S. Capitol while protesting the government's domestic and foreign policy. • Another prosecution (United States v. Haggerty) resulted from a flag-burning in Seattle protesting the passage of the Flag Protection Act.Both cases (Eichman's and Haggerty's) were argued together. Question • Did the Act violate freedom of expression protected by the First Amendment? Conclusion • 5-to-4 decision, Court struck down the law because "its asserted interest is related to the suppression of free expression and concerned with the content of such expression." • Allowing the flag to be burned in a disposal ceremony but prohibiting protestors from setting it ablaze at a political protest made that clear, argued Justice Brennan in one of his final opinions.

Gregory Lee "Joey" Johnson

Communist Youth Brigade Protest: 1984 Republican National Convention, Dallas Burned American Flag Charged with violating Texas law prohibiting "desecration of venerated object" USSC handed down decision in 1989

Heckler's Veto

Concept that gov't could limit speech by speaker who would incite an audience to violence. Overruled in Terminiello v. Chicago

Fighting Words

Gov't could limit speech that would create violence in others (Chaplinsky v. New Hampshire)

Flag Protection Act

In 1989, Congress passed this, which made it a crime to destroy an American flag or any likeness of an American flag which may be "commonly displayed."

Amending Constitution

Proposal 2/3 of members of both house and senate OR at a convention called by 2/3 of states AND Ratification 3/4 of the state legislature OR 3/4 of ratifying conventions in the states

W. Virginia State Bd. of Ed. v. Barnette, 1943

Ruled that students in public schools are not required to salute the flag/say pledge of allegiance (overruled a 1940 decision)

Flag Burning

Texas v. Johnson 1989 5-4 decision SC ruled flag burning an acceptable form of symbolic communication; invalidating Texas law Congress Adopt Flag Protection Act of 1989 U.S. v. Eichman/Haggerty, 1990 5-4 decision SC strikes down FPA

Note the Salute

The Bellamy salute was the original manner to salute the American flag; changed to hand over heart when Nazis adopted a similar salute

National Socialist Party v. Skokie

• Right to march/protest and resulting violence • Protected right of American Nazi party to march in Skokie, Illinois, warning local residents they could be arrested if physically attaching the protestors