Texas v. Johnson: Five Principles

Prof. Amar says cases like Texas v. Johnson are important for many reasons. He says the Court is concerned with at least "five basic First Amendment principles.”

Let’s look at these principles:

First, symbolic conduct – burning a flag or a draft card – is fully embraced by the First Amendment. Notice that some have argued that symbolic speech, such as burning a flag, can be regulated as “conduct.”

Second, government may not regulate the physical medium with the purpose of suppressing the ideological message. So you can ban public burning for environmental reasons, but not disrespectful burning of the American flag.

Third, political expression – especially expression critical of government – lies at the core of the First Amendment.

Four, courts must guard against attempts by government to suppress disfavored viewpoints

Five, exceptions to these principles must not be “ad hoc” – i.e. “Flag burning is different” or “Hate speech” is different. [“seditious libel” is different” or “dirty words are different” or “sexual expression is different”]

See Akhil Reed Amar, The Case of the Missing Amendments, 106 Harv. L. Rev. 124, 132-145 (1992). Amar says that "to fail to see that Johnson is an easy case is, quite bluntly, to misunderstand First Amendment first principles." Id. at133.