President-elect Donald Trump's current comments about prosecuting flag-burning protesters hasstarted yet an additional debate about the issue. However in the end, the just Justice left top top the supreme Court indigenous the 1980s might have the final say on the matter.

You are watching: Flag burning and the first amendment

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Justice Anthony Kennedy

Since choice Night, there has been a renewed attention in the constitutional subject after number of anti-Trump protesters shed flags in public come protest his victory over Hillary Clinton. Top top Tuesday, Trump added fuel come the controversy with a provoking message on Twitter: “Nobody need to be enabled to burn the American flag - if lock do, there must be consequences - possibly loss that citizenship or year in jail!”

Flag burning, together we’ve disputed in detail on this blog and at the national Constitution, is a legal conflict that goes back decades, and also in the psychic of the supreme Court, has actually been resolved since 1990.

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In our interaction Constitution project, scholars Geoffrey R. Rock and Eugene Volokh explained back in September 2015the an easy concept of symbolic speech in the an initial Amendment, i m sorry reads that Congress can’t make regulations that “abridging the freedom of decided or the the press.”

“The supreme Court has taken ‘speech’ and ‘press’ extensively as covering not only talking, writing, and also printing, but also broadcasting, using the Internet, and other forms of expression. The liberty of speech also applies come symbolic expression, such as displaying flags, burn flags, put on armbands, burning crosses, and the like,” said stone and Volokh.

“The can be fried Court has held that restrictions on speech due to the fact that of that is content—that is, when the federal government targets the speaker’s message—generally violate the very first Amendment. Laws that prohibit world from criticizing a war, opposing abortion, or advocating high taxes are instances of unconstitutional content-based restrictions. Such regulations are assumed to be particularly problematic because they distort windy debate and contradict a basic principle that self-governance: the the federal government cannot be trusted to decision what ideas or details ‘the people’ should be enabled to hear.”

Stone and Volokh also provided that hasn’t always been the case. “Courts have actually not constantly been this protective of free expression. In the nineteenth century, for example, courts allowed punishment that blasphemy, and also during and also shortly after civilization War i the supreme Court hosted that decided tending to encourage crime—such together speech condemning the army draft or praising anarchism—could it is in punished.” But due to the fact that the 1920s, “the can be fried Court started to review the an initial Amendment much more broadly, and also this trend increased in the 1960s,” lock concluded.

Two landmark can be fried Court decisions ruled on the burning of American flags in ~ protests. In 1989, the Court first established flag burning as a protected an initial Amendment plot inTexas v. Johnson.Back in 1984, Gregory Lee Johnson shed a flag in ~ the Republican nationwide Convention in Dallas in a protest about presidential candidates Ronald Reagan and also Walter Mondale. Officials there arrested Johnson and convicted the of breaking a state law; he to be sentenced to one year in prison and also ordered to salary a $2,000 fine.

In June 1989, a deeply split Court vote 5-4 in favor of Johnson, and versus the state that Texas. Johnson’s actions, the bulk argued, to be symbolic speech political in nature and could be expressed also if it uncomfortable those that disagreed v him.

The Court’s Johnson decision only applied to the law in the state that Texas. In response, congress passed a national anti-flag burn law called the Flag protection Act of 1989 sponsored by a residence member from Texas. The final bill authorized by the Senate in October 1989 do “it unlawful to maintain a U.S. Flag top top the floor or floor or come physically defile such flag.” The bill, however, asked for an expedited supreme Court testimonial to consider “constitutional issues arising under this Act.”

There to be flag-burning protests the day the federal legislation went into impact in late October 1989. Arrests to be made at protests in Seattle and Washington, D.C., but federal judges dismissed the charges based on the Johnson decision. Government lawyers appealed straight to the supreme Court, and the same Justices who heard the Johnson instance considered United states v. Eichman in may 1990 – with the very same outcome.

In the majority were Justices wilhelm Brennan (who created both bulk decisions), Anthony Kennedy, Thurgood Marshall, take care of Blackmun and also Antonin Scalia. The dissenters were Chief Justice william Rehnquist, man Paul Stevens, Byron White and Sandra job O’Connor.

The decisions stay controversial to the existing day, and Congress in 2006 check to happen a share resolution to propose an amendment to the structure to prohibit flag desecration, i m sorry failed by simply one vote in the Senate.

For the incoming chairman Trump, the only likely option brief of a constitutional amendment would be a adjust of love at the can be fried Court. But even with a new member involvement the Court following year, there are 4 members the its liberal bloc tho in place, together is justice Anthony Kennedy, the only member of the 1989/1990 Rehnquist court top top the existing bench.

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It was Kennedy that wrote the concurring opinion because that the majority in the Johnson decision, whereby he agreed v the other four Justices (including Scalia) the Johnson’s “acts were speech, in both the technical and the fundamental definition of the Constitution."

“The hard reality is that sometimes we have to make decision we do not like. We make them due to the fact that they are right, ideal in the feeling that the law and also the Constitution, together we watch them, compel the result,” Kennedy composed in 1989.

“I do not believe the Constitution offers us the ideal to dominance as the dissenting Members of the Court urge, but painful this referee is to announce. Despite symbols regularly are what we ourselves do of them, the flag is consistent in expressing beliefs Americans share, beliefs in law and peace and also that liberty which sustains the human spirit,” Kennedy added. “It is emotional but basic that the flag protects those who host it in contempt.”