Texas v. Johnson: Oral Argument

Here is the next oral argument we will be listening to. This one is of Texas v. Johnson, the flag burning case. Here is the link:

                                      Texas v. Johnson




Here is the brief from Oyez:

                            

Facts of the case

In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.

Question

Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

Please try to post a comment below by April 10.

Was there any exchange that you thought was particularly interesting or particularly good? Any questions from the Bench that you found interesting.

One good thing about listening to oral arguments as part of our on line learning is that you get to see great lawyers in action on a case that we are reading and studying. Is there anything you learned about oral advocacy from this oral argument?

My Comments 

1. Texas argued that it wished to protect the "physical integrity" of the flag. That preventing a citizen from burning the flag to express dissent was somehow not restricting speech, but only physical conduct. But when you dig down into the argument, the concern is not about a physical shortage of flags, but rather protecting the symbol of the flag from desecration. That is a viewpoint-based concern, not one limited to "physical integrity."
2. Texas also seemed to view the symbolism of the flag as some kind of "national property" that calls for an ad hoc exception to the Free Speech Clause. Plus for the 50 state flags!
3. O'Connor asks whether a state could ban the burning of a copy of the US Constitution or of a state constitution. Great question! Then Scalia--being Scalia!--asks whether Texas could protect the state flower from symbolic desecration. [I miss him more every day!]
4. Justice Blackmun: the remedy for offensive speech is not censorship, but counter-speech: "Isn't the real way of opposing this kind of action by this man to have a large crowd out waving other flags in opposition to his posture rather than putting him in jail?
5. Notice also that Texas argues for a hecklers' veto; that there is a compelling interest in protecting against a breach of the peace when offended observers react violently to flag burning.
6. I loved that Johnson's lawyer ended with this quotation from: "J. Anthony Lukas, a very excellent former reporter for the New York Times, [who] said,  'Whatever pain freedom of expression may inflict, it is a principle on which we can give no ground.'" I agree!