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In the 1960s, however, the Supreme Court’s rulings on free expression became more liberal, in response to the Vietnam War and the growing antiwar movement. In a 1969 case involving the Ku Klux Klan,
Brandenburg v. Ohio , the Supreme Court found that only speech or writing that constituted a direct call or plan to imminent lawless action, an illegal act in the immediate future, could be suppressed; the mere advocacy of a hypothetical revolution was not enough.
Brandenburg v. Ohio , 395 U.S. 444 (1969). The Supreme Court also found that various forms of
symbolic speech —wearing clothing like an armband that carried a political symbol or raising a fist in the air, for example—were subject to the same protections as written and spoken communication.
Perhaps no act of symbolic speech has been as controversial in U.S. history as the burning of the flag ( [link] ). Citizens tend to revere the flag as a unifying symbol of the country in much the same way most people in Britain would treat the reigning queen (or king). States and the federal government have long had laws protecting the flag from being desecrated—defaced, damaged, or otherwise treated with disrespect. Perhaps in part because of these laws, people who have wanted to drive home a point in opposition to U.S. government policies have found desecrating the flag a useful way to gain public and press attention to their cause.
One such person was Gregory Lee
Johnson , a member of various pro-communist and antiwar groups. In 1984, as part of a protest near the Republican National Convention in Dallas, Texas, Johnson set fire to a U.S. flag that another protestor had torn from a flagpole. He was arrested, charged with “desecration of a venerated object” (among other offenses), and eventually convicted of that offense. However, in 1989, the Supreme Court decided in
Texas v. Johnson that burning the flag was a form of symbolic speech protected by the First Amendment and found the law, as applied to flag desecration, to be unconstitutional.
Texas v. Johnson , 491 U.S. 397 (1989).
This court decision was strongly criticized, and Congress responded by passing a federal law, the
Flag Protection Act , intended to overrule it; the act, too, was struck down as unconstitutional in 1990.
United States v. Eichman , 496 U.S. 310 (1990). Since then, Congress has attempted on several occasions to propose constitutional amendments allowing the states and federal government to re-criminalize flag desecration—to no avail.
Should we amend the Constitution to allow Congress or the states to pass laws protecting the U.S. flag from desecration? Should we protect other symbols as well? Why or why not?
Freedom of the press is an important component of the right to free expression as well. In
Near v. Minnesota , an early case regarding press freedoms, the Supreme Court ruled that the government generally could not engage in
prior restraint ; that is, states and the federal government could not in advance prohibit someone from publishing something without a very compelling reason.
Near v. Minnesota , 283 U.S. 697 (1931). This standard was reinforced in 1971 in the Pentagon Papers case, in which the Supreme Court found that the government could not prohibit the
New York Times and
Washington Post newspapers from publishing the
Pentagon Papers .
New York Times Co. v. United States , 403 U.S. 713 (1971). These papers included materials from a secret history of the Vietnam War that had been compiled by the military. More specifically, the papers were compiled at the request of Secretary of Defense Robert
McNamara and provided a study of U.S. political and military involvement in Vietnam from 1945 to 1967. Daniel
Ellsberg famously released passages of the Papers to the press to show that the United States had secretly enlarged the scope of the war by bombing Cambodia and Laos among other deeds while lying to the American public about doing so.
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