- Question
- An Evaluation of Texas v. Johnson
Description
Texas v. Johnson ruled that the state could not convict Johnson for violating its flag desecration statute when he burned the flag at a political rally. Several justices address the concept of "expressive conduct" in the Johnson case, some supporting Johnson but others finding fault with how the majority used precedents dealing with symbolic speech. Texas v. Johnson was difficult case for the Supreme Court (it was decided by a 5-4 vote) because it required the justices to apply the broad language of the First Amendment to a form of expressive behavior that many people would find objectionable.
Read the opinion of the court and the concurrences and dissent. Do you think the court came to the correct decision about symbolic speech? If you were on the court, how would you have voted in the case? As you think these and issues remember that the question is not whether you approve of what Johnson did when he burned the flag but rather whether, based on the Court's prior precedents and standards, which you should draw upon in your comments, the Constitution should protect his behavior.
Details are important. Also, draw upon materials about constitutional interpretation in the Epstein and Walker book where appropriate in framing your comment .The Epstein and Walker book addresses evolving free speech standards, symbolic speech and related issues about the freedom of expression. Included in this material is the concept of "symbolic speech", “expressive” behavior (as opposed to expression itself) that is also protected by the First Amendment because the behavior is intended to communicate ideas. Because these cases combine a behavioral dimension with an expressive one such cases often raise difficult issues.
| Subject | Law and governance | Pages | 3 | Style | APA |
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Answer
Did the court come to the correct decision about symbolic speech?
The court came to the correct decision about symbolic speech when it ruled that it was an affront to the First Amendment of the Federal Constitution to hold an accused for desecrating the United States flag. By burning the flag during the demonstration against President Reagan`s policies, Johnson was merely invoking his rights to expressive conduct under the First Amendment (Holzer, 1990). It was inconsistent with the stated First Amendment for the State to criminally sanction flag desecration on grounds that the flag is a symbol of national unity. Similarly, the statute that criminalized desecration flag failed to meet the state`s goal of maintaining order and peace (Holzer 1990). While suppressing Johnson`s expression, the state did not meet the standards that the court set in the precedence of United States v. O’Brien, 391 U.S. 367.
How I would vote in the case?
If I were in the case, I would vote against the suppression of expression by the state. The First Amendment, even though protect free speech, also protects conducts especially when such conducts have certain element of communication. In the case, Johnson was communicating his dissatisfaction with the policies that Reagan had introduced through expression. The state`s argument that they were protecting the flag denotes protecting political preferences which contradicts the First Amendment to the Constitution. Moreover, Johnson did not breach any public peace and his conduct did not amount to “fighting words” exception. The states and any other state organ must not only enhance, but protect the Federal Constitution in its entirety and thus I would discourage suppression of free speech by voting in favor of Johnson.
References
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Holzer, H. M. (1990). Texas v. Johnson. Santa Clara L. Rev., 30, 649. |