Free Speech and Flag Burning
Texas v. Johnson, 491 U.S. 397 (1989)
Flag burning constitutes symbolic speech that is protected by the First Amendment.
If you were an Associate Justice serving on the Supreme Court, what legal arguments would you take into account in deciding Texas v. Johnson? What emotional arguments would you need to be aware of and set aside? Can you think of other examples of symbolic political speech that might be offensive to some but that would be protected by the First Amendment? To stimulate your thinking, develop several hypothetical situations and identify what differentiates them from each other and from Texas v. Johnson.
United States v. Eichman, 496 U.S. 310 (1990)
The Johnson decision only affected a Texas state law. In the wake of the decision, the federal government enacted a law that also prohibited flag burning. In order to try to get around constitutional challenges, the law prohibited all types of flag desecration, with the exception of burning and burying a worn-out flag, regardless of whether the action upset others. The Supreme Court held that this did not cure the constitutional defect and the same 7-3 majority from Johnson held that the law still impermissibly discriminated upon viewpoint and struck it down.