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Flag Burning and the First Amendment
A Case Study of
U.S. v. Eichman
SEATTLE, WASHINGTON:MIDNIGHT ON OCTOBER 28, 1989
Mark Haggerty, Jennifer Campbell, Darius Strong, and Carlos Garza remove a flag from a U.S. post office and burn it.
They are immediately arrested and charged with violating the Flag Protection Act of 1989.
Photo taken by Nova77. http://commons.wikimedia.org/wiki/File:Seattle_skyline_night.jpg
. . . TWO DAYS LATER IN WASHINGTON, D.C.
Shawn Eichman, David Blalock, Scott Tyler and Gregory “Joey” Johnson each burn a flag on the steps of the Capitol Building.
Three of the four are arrested for violating The Flag Protection Act of 1989.
Photo by Hellohowareyoudoing. http://commons.wikimedia.org/wiki/File:Capitol_Building_Side2.jpg
WHAT WAS THEIR DEFENSE?
Both groups were prosecuted in federal court.
Both claimed that the Flag Protection Act of 1989 violated their First Amendment rights to free speech.
Photo by Noplur.
http://commons.wikimedia.org/wiki/File:Flag_burning.jpg
First Amendmen
t
Congress shall make no law... abridging the freedom of speech.
PURE SPEECH Words or conduct limited in form to what
is necessary to convey the idea. Given the greatest constitutional
protection. Limitations
Schenk v. United States Clear and Present Danger
Chaplinksy v. New Hampshire Fighting Words
SYMBOLIC SPEECH
Conduct that expresses opinions or thoughts.Stromberg v. California
Raising a red Communist Flag
Tinker v. Des Moines Independent Community School District
Wearing black armbands to protest the Vietnam War.
SYMBOLIC SPEECH: THE SPENCE TEST
Spence v. WashingtonAn intent to convey a particularized message.A great likelihood that the message will be
understood by those who view it.
SYMBOLIC SPEECH: LESS PROTECTED
Symbolic Speech enjoys less protection than pure speech.When “speech” and “nonspeech” elements are
combined in the same course of conduct, a sufficiently important government interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.
SYMBOLIC SPEECH: THE O’BRIEN TEST
Under United States v. O’Brien, the government can regulate symbolic speech if:
1. It is within its constitutional power to do so;
2. It furthers an important or substantial government interest;
3. That government interest is unrelated to the suppression of free expression (in other words, related to the nonspeech element of the conduct);
4. And the incidental restriction on the “speech” element is no greater than necessary to further the interest.
...SO, IS FLAG BURNING A FORM OF PROTECTED
SPEECH?
Texas v. Johnson Gregory “Joey” Johnson
burns a flag outside the Republican National Convention of 1984 in Dallas, Texas.
He is arrested for violating a Texas anti-flag burning statute.
Photo by Joel Seidenstein. http://commons.wikimedia.org/wiki/File:William_Kunstler_and_Gregory_Lee_Johnson.jpg
SUPREME COURT NARROWLY FINDS FOR JOHNSON
Photo by UpstateNYer.
http://commons.wikimedia.org/wiki/File:USSupremeCourtWestFacade.JPG
5-4 Decision Spence v. Washington
test Johnson conveyed a
particularized message likely to be understood by observers.
U.S. v. O’Brien test Government interest was
to suppress free expression
CONGRESS STRIKES BACK
Congress passes the Flag Protection Act of 1989.
The Flag Protection Act of 1969
Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both.
Congressional Response
Democrats Generally favored
creating a stronger law than the one in existence to prevent flag burning
Law should be “content-neutral” and focus on actions to avoid 1st Amendment application
Republicans Feared a new federal
law would simply expand the Johnson holding
Generally favored a Constitutional Amendment expressly giving Congress to legislate on the issue
Supported by President George H.W. Bush
Flag Protection Act of 1989
Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.
Clause that gave the Supreme Court direct jurisdiction over any appeal asking to address the constitutionality of the provision
“JOEY” JOHNSON & FRIENDS REACT
At midnight on October 28, 1989, the moment the new Act goes into effect, protesters across the country burn flags in protest.
This includes the Seattle protesters.
Two nights later, Johnson and his friends burn flags AGAIN in Washington, D.C.
Photo by Jennifer Parr. http://commons.wikimedia.org/wiki/File:US_flag_burning.jpg
THE CASES BECOME U.S. v. EICHMAN
The Supreme Court combines the two cases into one action.
Solicitor General Kenneth Starr Represents the U.S.
Bill Kunstler once again represents the flag burners.
ONCE AGAIN...THE FLAG BURNERS WIN!
5-4 Decision
Photo by lkluft.http://commons.wikimedia.org/wiki/File:Fireworks_in_San_Jose_California_2007_07_04_by_Ian_Kluft_img_9618.jpg
Supreme Court Votes in Texas v. Johnson and U.S. v. Eichman Laws Violate 1st
Amendment Marshall Brennan Blackmun Kennedy Scalia
Laws Do Not Violate 1st Amendment Stevens White O’Connor Rehnquist
Flag Desecration Amendment Debate
The Congress shall have power to prohibit
the physical desecration of the flag of the United
States
Arguments Against Flag Desecration Amendment
Restricts freedom of speech
Tyranny of the Majority
Opens the door
Arguments For Flag Desecration Amendment Not speech Special symbol Historical support for
banning Narrow area of law
Flag Protection Amendment Bills in Congress
Congress Resolution(s) Vote Date Yes No Percent104th
House Joint Resolution 79 June 28, 1995 312 120 72%
Senate Joint Resolution 31 December 19, 1995 63 36 64%
105th
House Joint Resolution 54 June 12, 1997 310 114 73%
106th
House Joint Resolution 33 June 24, 1999 305 124 71%
Senate Joint Resolution 14 March 29, 2000 63 37 63%
107th House Resolution 36 July 17, 2001 298 125 70%108th
House Joint Resolution 4 June 3, 2003 300 125 71%
109th
House Joint Resolution 10 June 22, 2005 285 130 69%
Senate Joint Resolution 12 June 27, 2006 66 34 66%
States’ Actions in Support of Flag Protection Amendment All 50 states have
passed resolutions
48 states still have flag desecration laws in place
American Support of a Flag Protection Amendment How important do you think it is to make physical
desecration of the U.S. flag against the law?
© Opinion Research Corporation, 2006. Prepared for the Citizen’s Flag Alliance
American Support of a Flag Protection Amendment Would you favor or oppose a Constitutional amendment
that would allow Congress to enact laws to protect the U.S. flag?
© Opinion Research Corporation, 2006. Prepared for the Citizen’s Flag Alliance
Desecrating Other Symbols
Civic?
Desecrating Other Symbols
Personal? Effigy of
Representative Frank Kratovil in 2009
Desecrating Other Symbols
Religious?
Westboro Baptist Church
“We adhere to the teachings of the Bible and preach against all forms of sin (e.g., fornication, adultery [including divorce and remarriage], sodomy)”
“WBC engages in daily peaceful sidewalk demonstrations opposing the homosexual lifestyle of soul-damning, nation-destroying filth.”
Recent Scheduled Protests: Fort Hood Memorial on Nov. 10 Veterans’ sites on Nov. 11 A Jewish high school on Nov. 12
Protected Speech?
Nazi March in Skokie Chase Harper How to be a Hitman Anarchist’s Cookbook Geert Wilders Crush Videos Town Hall Meetings