Texas v Johnson

Introduction to Freedom of Expression

• The concept of freedom of expression is a court-defined constitutional right from the First Amendment, emphasizing the protection of "freedom of speech."

• Fundamental tenets shaping American views on this freedom include individualism, skepticism of government, and personal liberation.

• Historical roots trace back to the beliefs of early American settlers, particularly Protestant dissenters, who valued freedom of conscience and religious expression.

• The revolutionary context fostered a spirit of dissent and criticism of authority, leading to a belief in the necessity of self-expression.

Historical Context and Development

• Despite a shared principle of free speech, Americans historically conflicted over its limits, balancing individual freedoms against public good.

• Eighteenth- and nineteenth-century Americans perceived the First Amendment as compatible with traditional English common law, emphasizing government stability.

• Joseph Story, a prominent legal scholar, warned against absolute freedom of speech, arguing for accountability to protect societal peace and safety.

• Opposition arguments from figures like James Madison advocated for broader interpretations of free speech in the context of American democracy.

• The Supreme Court in its early years had limited power and did not frequently interpret the First Amendment, which primarily restricted the national government.

The Role of Supreme Court

• Early debates on free speech emerged prominently during political disputes, such as slavery and Civil War discussions, highlighting its significance.

• Post-Civil War, the Fourteenth Amendment shifted the responsibility for protecting rights more onto the federal government and led to an evolving understanding of the Supreme Court's role.

• The First World War marked a pivotal moment, with the government cracking down on dissent, setting the stage for modern free speech doctrine.

• The Court’s “bad tendency” test initially permitted restrictions if aimed at preventing perceived evils; however, dissenting justices like Holmes advocated for a more expansive free speech framework.

Evolution of the Freedom of Expression Doctrine

• In Schenck v. United States (1919), Holmes introduced the “clear and present danger” test, shifting the focus to context and potential consequences of speech.

• Holmes’s viewpoint connected civil liberties with the marketplace of ideas, where truth emerges through competition among thoughts.

• By the twentieth century, societal movements, including labor rights and civil rights, questioned free speech’s boundaries and protections.

• The modern Supreme Court expanded First Amendment protections to encompass not just spoken or written words, but also symbolic acts (e.g., flag burning).

Types of Speech and Legal Protection

• The Supreme Court recognizes different levels of speech protection:

  • High Value Speech: Political, scientific, and artistic expressions receive extensive protection.

  • Low Value Speech: Includes obscenity and fighting words, offering limited protection.

• Regulations on speech are categorized by context:

  • Content Neutrality: Restrictions based on time, place, and manner are permissible if not discriminatory.

  • Public forums, like parks, enjoy broader protections compared to public properties such as airports.

  • Unique institutional settings (military, schools) face stricter standards due to disciplinary needs.

Public Good vs. Individual Rights

• Disputes over freedom of expression often juxtapose individual rights against the state's interest to maintain public welfare.

• It’s essential to recognize that free expression is vital not only for personal autonomy but also for democratic values and minority protections.

• Ongoing debates about expression continue to challenge the legal and philosophical frameworks of free speech, adapting to ever-changing social landscapes.

Case Study: Texas v. Johnson (1989)

• Background: The case arose when Gregory Johnson burned a flag during a protest against governmental policies, leading to his arrest under Texas law prohibiting flag desecration.

• Johnson's conviction was contested on First Amendment grounds, questioning whether the government could regulate symbolically significant acts.

• Key Themes:

  • Expression of Dissent: Johnson’s action was an expression of opposition, core to First Amendment values.

  • Government Interests: The law's aim was not merely to protect the flag's integrity but to prevent offense, challenging the limits of acceptable governmental regulation.

• The Court ruled 5-4 in favor of Johnson, asserting that the government cannot limit expression simply because it is deemed offensive, reaffirming the primacy of free speech.

Conclusion

• The evolution of the freedom of expression highlights ongoing tensions between individual rights and collective governance.

• As new societal norms and technologies emerge, the interpretation and application of the First Amendment will continue to drive significant legal and philosophical discussions.