Texas v. Johnson

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.

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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.

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