Flag Burning and the First Amendment A Case

Flag Burning and the First Amendment A Case Study of U. S. v. Eichman

SEATTLE, WASHINGTON: MIDNIGHT ON OCTOBER 28, 1989 q Mark Haggerty, Jennifer Campbell, Darius Strong, and Carlos Garza remove a flag from a U. S. post office and burn it. q They are immediately arrested and charged with violating the Flag Protection Act of 1989. Photo taken by Nova 77. http: //commons. wikimedia. org/wiki/File: Seattle_skyline_night. jpg

. . . TWO DAYS LATER IN WASHINGTON, D. C. n Shawn Eichman, David Blalock, Scott Tyler and Gregory “Joey” Johnson each burn a flag on the steps of the Capitol Building. n 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_Side 2. jpg

WHAT WAS THEIR DEFENSE? n n Photo by Noplur. http: //commons. wikimedia. org/wiki/File: Flag_burning. jpg Both groups were prosecuted in federal court. Both claimed that the Flag Protection Act of 1989 violated their First Amendment rights to free speech.

First Amendment Congress shall make no law. . . abridging the

PURE SPEECH Words or conduct limited in form to what is necessary to convey the idea. n Given the greatest constitutional protection. n Limitations n ¨ Schenk n v. United States Clear and Present Danger ¨ Chaplinksy n v. New Hampshire Fighting Words

SYMBOLIC SPEECH n Conduct that expresses opinions or thoughts. ¨ Stromberg n v. California Raising a red Communist Flag ¨ Tinker v. Des Moines Independent Community School District n Wearing black armbands to protest the Vietnam War.

SYMBOLIC SPEECH: THE SPENCE TEST n Spence v. Washington ¨ An intent to convey a particularized message. ¨ A great likelihood that the message will be understood by those who view it.

SYMBOLIC SPEECH: LESS PROTECTED n 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 n Under United States v. O’Brien, the government can regulate symbolic speech if: 1. 2. 3. 4. It is within its constitutional power to do so; It furthers an important or substantial government interest; That government interest is unrelated to the suppression of free expression (in other words, related to the nonspeech element of the conduct); 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? n 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_J ohnson. jpg

SUPREME COURT NARROWLY FINDS FOR JOHNSON n n 5 -4 Decision Spence v. Washington test ¨ Photo by Upstate. NYer. http: //commons. wikimedia. org/wiki/File: USSupreme. Court. West. Facade. JPG n 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 n Congress passes the Flag Protection Act of 1989.

The Flag Protection Act of 1969 n 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 n Democrats Generally favored creating a stronger law than the one in existence to prevent flag burning ¨ Law should be “contentneutral” and focus on actions to avoid 1 st Amendment application ¨ n 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 n 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. n Clause that gave the Supreme Court direct jurisdiction over any appeal asking to address the constitutionality of the provision

“JOEY” JOHNSON & FRIENDS REACT n At midnight on October 28, 1989, the moment the new Act goes into effect, protesters across the country burn flags in protest. n This includes the Seattle protesters. n 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 n n n 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! n 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 n Laws Violate 1 st Amendment n Laws Do Not Violate 1 st Amendment ¨ Marshall ¨ Stevens ¨ Brennan ¨ White ¨ Blackmun ¨ O’Connor ¨ Kennedy ¨ Rehnquist ¨ Scalia

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 n n n Restricts freedom of speech Tyranny of the Majority Opens the door

Arguments For Flag Desecration Amendment n n Not speech Special symbol Historical support for banning Narrow area of law

Flag Protection Amendment Bills in Congress 104 th 105 th 106 th Resolution(s) Vote Date House Joint Resolution 79 Senate Joint Resolution 31 House Joint Resolution 54 House Joint Resolution 33 Senate Joint Resolution 14 107 th House Resolution 36 108 th House Joint Resolution 4 109 th No Percent June 28, 1995 312 120 72% December 19, 1995 63 36 64% June 12, 1997 310 73% 114 June 24, 1999 305 124 71% March 29, 2000 63 37 63% House Joint Resolution 10 Senate Joint Resolution 12 Yes July 17, 2001 298 June 3, 2003 300 70% 125 71% 125 June 22, 2005 285 130 69% June 27, 2006 66 34 66%

States’ Actions in Support of Flag Protection Amendment n All 50 states have passed resolutions n 48 states still have flag desecration laws in place

American Support of a Flag Protection Amendment n 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 n 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 n Civic?

Desecrating Other Symbols n Personal? ¨ Effigy of Representative Frank Kratovil in 2009

Desecrating Other Symbols n Religious?

Westboro Baptist Church n “We adhere to the teachings of the Bible and preach against all forms of sin (e. g. , fornication, adultery [including divorce and remarriage], sodomy)” n “WBC engages in daily peaceful sidewalk demonstrations opposing the homosexual lifestyle of souldamning, nation-destroying filth. ” n Recent Scheduled Protests: Fort Hood Memorial on Nov. 10 ¨ Veterans’ sites on Nov. 11 ¨ A Jewish high school on Nov. 12 ¨

Protected Speech? n n n n Nazi March in Skokie Chase Harper How to be a Hitman Anarchist’s Cookbook Geert Wilders Crush Videos Town Hall Meetings