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Flag Burning and the First Amendment

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

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Flag Burning and the First Amendment

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

  2. 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 SEATTLE, WASHINGTON:MIDNIGHT ON OCTOBER 28, 1989

  3. 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 . . . TWO DAYS LATER IN WASHINGTON, D.C.

  4. 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 WHAT WAS THEIR DEFENSE?

  5. First Amendment Congress shall make no law... abridging the freedom of speech.

  6. 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

  7. 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.

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

  9. 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.

  10. SYMBOLIC SPEECH: THE O’BRIEN TEST • Under United States v. O’Brien, the government can regulate symbolic speech if: • 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.

  11. 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 ...SO, IS FLAG BURNING A FORM OF PROTECTED SPEECH?

  12. Photo by UpstateNYer. http://commons.wikimedia.org/wiki/File:USSupremeCourtWestFacade.JPG 5-4 Decision Spence v. Washington test Johnson coveyed a particularized message likely to be understood by observers. U.S. v. O’Brien test Government interest was to suppress free expression SUPREME COURT NARROWLY FINDS FOR JOHNSON

  13. Congress passes the Flag Protection Act of 1989. CONGRESS STRIKES BACK

  14. 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

  15. 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.

  16. 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

  17. 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 “JOEY” JOHNSON & FRIENDS REACT

  18. 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.

  19. 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 ONCE AGAIN...THE FLAG BURNERS WIN!

  20. 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

  21. Flag Desecration Amendment Debate The Congress shall have power to prohibit the physical desecration of the flag of the United States

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

  23. Arguments Against Flag Desecration Amendment • Restricts freedom of speech • Tyranny of the Majority • Opens the door

  24. Flag Protection Amendment Bills in Congress

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

  26. 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

  27. 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

  28. Desecrating Other Symbols • Civic?

  29. Desecrating other Symbols • Religious?

  30. Protected Speech? • Nazi March in Skokie • Don Imus • Chase Harper • How to be a Hitman • Anarchist’s Cookbook • Town Hall Meetings • Geert Wilders

  31. Videos • http://video.google.com/videosearch?hl=en&rlz=1I7GGLL_en&resnum=0&q=flag+burning+documentary&um=1&ie=UTF-8&ei=RVP4SqvwIY3QM-fG8egF&sa=X&oi=video_result_group&ct=title&resnum=4&ved=0CBoQqwQwAw# • http://www.youtube.com/watch?v=1zM_mgLESIc • http://www.livevideo.com/video/embedLink/EA99CA387EE64D0FA10FE7F6E23E4C30/216455/the-simpsons-an-amendment-to.aspx

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