Expectations of Privacy in a Technological Age
A recent article in the New York Times reported on the ways people frequently share rather private information through social networking sites such as Facebook, as well as when engaging in online commerce and other Internet activity. The article reported on how relatively easy it was for third parties to gather information from these sites in order to make future predictions about someone’s purchasing or movie rental habits, and in some cases third parties were able to predict much more personal information, such as someone’s social security number, based upon their online activity.
There is no question that new technologies and new uses for the Internet have important privacy implications. I am often struck by how willingly and perhaps unthinkingly people who have grown up in the Internet era are to put what I view as very private information online. For me this raises the question: in which activities do we have a reasonable expectation of privacy?
This focus on reasonable expectation of privacy of course comes from the Supreme Court’s opinion in Katz v. United States. In Katz and in subsequent cases the Court held that the protections of the 4th Amendment applied to conduct for which there was a subjective expectation of privacy which society is prepared to recognize as reasonable. The short-hand test is “reasonable expectation of privacy.” In the years after Katz, the Court has been asked on a few occasions to apply that test in the arena of advancing technologies. In Kyllo v. United States, the Court held that the police officers’ use of a thermo-imaging device to detect the amount of heat that was radiating from a home was a search under the Fourth Amendment, because those living in the home had a reasonable expectation of privacy in that information. On the question of advancing technology, the Court noted that, because the thermo-imaging device was not something that was readily available to the general public, there was still a reasonable expectation of privacy in the information detected by the device.
While many would agree that the outcomes in both Katz and Kyllo are protective of individual privacy rights, the practices which we as a society seem to be developing and following when it comes to Internet use have me wondering whether “reasonable expectation of privacy” is the right threshold test for Forth Amendment protection. If the protections of the Fourth Amendment are triggered in large part by our societal norms, then it seems that in much of our daily lives, whether it is engaging in online shopping or banking, or social networking, texting, talking on our smart phones, or driving, we have set a pretty low threshold for the types of information we expect to be private.
Perhaps it is time, given these social dynamics, to re-examine the reasonable expectation of privacy test, and also to re-examine exactly what core interests the Fourth Amendment was intended to protect. Was it to protect privacy, or is there something more or a different interest at stake? In this age of information collection and sharing that seems to occur seamlessly between governmental entities and the private sector, can the Fourth Amendment be used to draw meaningful distinctions between information held in the private sector and information to which the government has access? When people engage with the most modern technological tools, do they really understand and appreciate the privacy issues at stake? How does our experience in the post 9/11 world change our view, if at all, toward the role of government? Just what does it mean to have a reasonable expectation of privacy in the 21st Century? These are important questions to think about next time we pick up a smart phone or order a movie online or share pictures of our friends over a social networking site.
March 31, 2010
March 28, 2010
Charter Schools: Under the "Pretense of Loving Liberty"
Ever wonder where the money comes from for the charter school movement? Follow the money and you get a sense of who really benefits from all this choice: it’s not the kids.
Rhode Island’s General Assembly recently voted to raise the limit on charter schools from 20 to 35. Governor Donald Carcieri was quick to sign the measure and voice his support for charter school growth.
"It is imperative that we offer students challenging environments in which to learn," Carcieri stated.
The statement should have clarified that by this the Governor meant new challenging environments: just one month earlier the Governor proposed the largest cut to education spending in almost two decades according to the Providence Journal.
Central Falls, the state’s poorest city as well as ground zero in the nation’s war on public school teachers and institutions, is slated to lose 1.7 million under the Governor’s budget.
This is the same city in which the superintendent recommended, and Rhode Islander's Commissioner of Education approved, the termination of every teacher at the sole high school. This misguided effort to "turn around" this low-performing school was prompted by President Obama's "Race to the Top," an ill-conceived state competition for education funding.
Pawtucket, another high-poverty district in Rhode Island, will lose $2.5 million under the budget. In this same budget, the Governor allocated an additional $7.2 million dollars to expand five charter schools and create two others.
Millions of state education dollars are being diverted from neighborhood schools and handed over to quasi-private entities, some with no track record of success. The strategy is to starve the public sector and simultaneously portray the private sector as the only remaining solution.
Proponents of charter schools do their best to depict their movement as a grassroots campaign driven by parents and children, but this is inaccurate.
The Rhode Island League of Charter Schools has a lobbying partner: Advocacy Solutions. This company’s clients include Delta Dental of Rhode Island, Verizon, and National Grid.
On its website, Advocacy Solutions takes great pride in its manufactured grassroots campaigns to facilitate charter school growth in other states, admitting it was hired by the Connecticut Alliance for Great Schools to "build a grassroots network of supporters and to generate a groundswell of grassroots letters, emails, and calls to state legislators’ offices." The result of this work: a substantial increase in funding for Connecticut’s charter schools.
Under the "pretense of loving liberty," words penned by President Abraham Lincoln in his rail against hypocrisy, but equally applicable to today's charter school proponents, education reformers now trumpet a child’s right to a quality education. But from where I stand, I see more pretense than liberty. The choice, if any, that students will gain, will be one that curtails their liberties by eroding the quality of education they receive.
Rhode Island’s General Assembly recently voted to raise the limit on charter schools from 20 to 35. Governor Donald Carcieri was quick to sign the measure and voice his support for charter school growth.
"It is imperative that we offer students challenging environments in which to learn," Carcieri stated.
The statement should have clarified that by this the Governor meant new challenging environments: just one month earlier the Governor proposed the largest cut to education spending in almost two decades according to the Providence Journal.
Central Falls, the state’s poorest city as well as ground zero in the nation’s war on public school teachers and institutions, is slated to lose 1.7 million under the Governor’s budget.
This is the same city in which the superintendent recommended, and Rhode Islander's Commissioner of Education approved, the termination of every teacher at the sole high school. This misguided effort to "turn around" this low-performing school was prompted by President Obama's "Race to the Top," an ill-conceived state competition for education funding.
Pawtucket, another high-poverty district in Rhode Island, will lose $2.5 million under the budget. In this same budget, the Governor allocated an additional $7.2 million dollars to expand five charter schools and create two others.
Millions of state education dollars are being diverted from neighborhood schools and handed over to quasi-private entities, some with no track record of success. The strategy is to starve the public sector and simultaneously portray the private sector as the only remaining solution.
Proponents of charter schools do their best to depict their movement as a grassroots campaign driven by parents and children, but this is inaccurate.
The Rhode Island League of Charter Schools has a lobbying partner: Advocacy Solutions. This company’s clients include Delta Dental of Rhode Island, Verizon, and National Grid.
On its website, Advocacy Solutions takes great pride in its manufactured grassroots campaigns to facilitate charter school growth in other states, admitting it was hired by the Connecticut Alliance for Great Schools to "build a grassroots network of supporters and to generate a groundswell of grassroots letters, emails, and calls to state legislators’ offices." The result of this work: a substantial increase in funding for Connecticut’s charter schools.
Under the "pretense of loving liberty," words penned by President Abraham Lincoln in his rail against hypocrisy, but equally applicable to today's charter school proponents, education reformers now trumpet a child’s right to a quality education. But from where I stand, I see more pretense than liberty. The choice, if any, that students will gain, will be one that curtails their liberties by eroding the quality of education they receive.
March 18, 2010
Supreme Court Draws a Bright Line for the Edwards Bar
In Maryland v. Shatzer, the Court definitively answered a question that had remained open since Edwards v. Arizona, regarding the effect of a suspect’s invocation of his right to counsel following Miranda warnings. In Edwards, the Court held that once a suspect in custody had requested to talk with a lawyer before speaking to the police, the police must cease questioning and they cannot reinitiate questing unless and until the suspect’s counsel is present. This requirement has come to be known as the “Edwards bar.” According to the Court, this additional level of prophylactic protection is necessary to preserve the integrity of an accused’s choice to communicate with police only through counsel. Without this additional protection, nothing prevents the police from simply badgering the suspect until he agrees to waive his right to have counsel present for questioning.
The issue not addressed in Edwards is, once the suspect invokes the right to counsel and the Edwards bar is raised, can anything short of providing counsel, such as releasing the suspect from custody, lower the Edwards bar and allow the police to reinitiate questioning? Until Maryland v. Shatzer, the Court had not addressed that issue directly.
In Shatzer, the suspect was serving a sentence for child-sexual-abuse conviction. While in jail, a detective wanted to question Shatzer on another, unrelated allegation of child abuse. Shatzer was read his Miranda rights, and he invoked his right to counsel and the police terminated the questioning. Some two and a half years later, while Shatzer was still incarcerated, the police once again sought to question him about this unrelated incident. This time, after reading him his Miranda rights, Shatzer waived his rights and agreed to talk with the police, eventually incriminating himself in this other incident.
In resolving this case, the Court addressed two issues. First, does a break in custody lower the Edwards bar so that the police can at some point reinitiate questioning without counsel being present, and if so, how long of a break in custody is required? Second, what amounts to a break in custody for Miranda purposes? The interesting thing about this case is how the Court took two very different and diametrically opposed approaches to resolving these issues.
On the question of whether a break in custody can lower the Edwards bar, Justice Scalia writing for the majority, held that a break in custody can lower the Edwards bar. Justice Scalia reasoned that once the suspect is released from custody, he is no longer in the police dominated atmosphere, cut off from his normal life and companions. He is free to seek the advice of friends, family and an attorney. He knows from past experience that he can stop the questioning by requesting counsel and the risk that his will would be worn down by police reinitiating questioning is highly unlikely. If the police were prevented from reinitiating questioning in such a case, the cost in terms of the inability to obtain and use voluntary confessions would be too great.
How long of a break in custody is necessary before the police can reinitiate questioning? Here the Court arbitrarily selected 14 days as the magic number. In selecting this as the time frame, Justice Scalia acknowledged that it was an arbitrary choice. He justified the Court’s authority to do this, noting that since the Edwards bar is not a constitutional mandate but a prescribed prophylaxis, the Court has the authority to impose a rule setting out its limits. Opting for this bright line rule of 14 days over a less specific fact bound and factor driven rule, Justice Scalia said that the police need a rule of certainty in order to know when renewed interrogation is lawful. So the clear holding of this case is that the police can reinitiate questioning after a break in custody of at least 14 days.
If this new rule was applied in Shatzer’s case, the police could not have reinitiated questioning because, of course, Shatzer was still in custody, serving time for the unrelated offense. And this is where the case gets even more interesting. In order to account for the fact that Shatzer was still in custody, the Court distinguishes custody for Miranda purposes from the type of custody that a suspect may be under in normal prison life. According to the Court, they are not the same. In prison-custody the suspect is able to do such things as move around and mingle with other inmates, visit the library, have visitors, get mail and phone calls, work in the prison, and otherwise interact with members of the prison community. In Miranda-custody on the other hand, the suspect’s freedom of movement is further restricted and his contact with the outside world, even the prison world, is further limited. The Court reasoned that in the two and a half years between questionings Shatzer was not in Miranda custody, but rather just prison-custody. Therefore, there had been a sufficient break, allowing the police to reinitiate questioning.
The arbitrariness of the 14 day break in custody and the distinction between Miranda-custody and prison-custody can, and likely will, be debated by commentators well into the future. What is of particular interest to me is how in choosing the 14 day rule, the Court opted for a bright line rule over a fact and factor based analysis, yet, when distinguishing between Miranda-custody and prison-custody, the Court went the opposite direction. Rather then applying the much brighter line rule that custody exists anytime a person’s freedom of movement is restrained, the Court chooses to examine the specific facts of this case and particular factors that might distinguish Miranda custody from prison custody. So why the bright line rule in one context and the fuzzy fact bound rule in the other?
Of course, one answer might be that this is just an example of outcome determinative justice. In order to reach the result it wanted, the Court simply had to take two different approaches. That may very well be the answer. It also may be that the Court simply feels more willing to create bright line rules for a law enforcement audience and less compelled to do so when it is the courts that will be sorting out the issues. Perhaps there is less of a need for a bright line rule on the custody question because, in order for any confession to be voluntary, the Miranda custody would have to be relativly short. This case is a good example of a Court less guided by principle then pragmatisim. It will also be interesting to see just how bright this 14 day line really is in future cases. If past history is any guide, many of the Court’s bright line rules in the Miranda context have dulled over time.
In Maryland v. Shatzer, the Court definitively answered a question that had remained open since Edwards v. Arizona, regarding the effect of a suspect’s invocation of his right to counsel following Miranda warnings. In Edwards, the Court held that once a suspect in custody had requested to talk with a lawyer before speaking to the police, the police must cease questioning and they cannot reinitiate questing unless and until the suspect’s counsel is present. This requirement has come to be known as the “Edwards bar.” According to the Court, this additional level of prophylactic protection is necessary to preserve the integrity of an accused’s choice to communicate with police only through counsel. Without this additional protection, nothing prevents the police from simply badgering the suspect until he agrees to waive his right to have counsel present for questioning.
The issue not addressed in Edwards is, once the suspect invokes the right to counsel and the Edwards bar is raised, can anything short of providing counsel, such as releasing the suspect from custody, lower the Edwards bar and allow the police to reinitiate questioning? Until Maryland v. Shatzer, the Court had not addressed that issue directly.
In Shatzer, the suspect was serving a sentence for child-sexual-abuse conviction. While in jail, a detective wanted to question Shatzer on another, unrelated allegation of child abuse. Shatzer was read his Miranda rights, and he invoked his right to counsel and the police terminated the questioning. Some two and a half years later, while Shatzer was still incarcerated, the police once again sought to question him about this unrelated incident. This time, after reading him his Miranda rights, Shatzer waived his rights and agreed to talk with the police, eventually incriminating himself in this other incident.
In resolving this case, the Court addressed two issues. First, does a break in custody lower the Edwards bar so that the police can at some point reinitiate questioning without counsel being present, and if so, how long of a break in custody is required? Second, what amounts to a break in custody for Miranda purposes? The interesting thing about this case is how the Court took two very different and diametrically opposed approaches to resolving these issues.
On the question of whether a break in custody can lower the Edwards bar, Justice Scalia writing for the majority, held that a break in custody can lower the Edwards bar. Justice Scalia reasoned that once the suspect is released from custody, he is no longer in the police dominated atmosphere, cut off from his normal life and companions. He is free to seek the advice of friends, family and an attorney. He knows from past experience that he can stop the questioning by requesting counsel and the risk that his will would be worn down by police reinitiating questioning is highly unlikely. If the police were prevented from reinitiating questioning in such a case, the cost in terms of the inability to obtain and use voluntary confessions would be too great.
How long of a break in custody is necessary before the police can reinitiate questioning? Here the Court arbitrarily selected 14 days as the magic number. In selecting this as the time frame, Justice Scalia acknowledged that it was an arbitrary choice. He justified the Court’s authority to do this, noting that since the Edwards bar is not a constitutional mandate but a prescribed prophylaxis, the Court has the authority to impose a rule setting out its limits. Opting for this bright line rule of 14 days over a less specific fact bound and factor driven rule, Justice Scalia said that the police need a rule of certainty in order to know when renewed interrogation is lawful. So the clear holding of this case is that the police can reinitiate questioning after a break in custody of at least 14 days.
If this new rule was applied in Shatzer’s case, the police could not have reinitiated questioning because, of course, Shatzer was still in custody, serving time for the unrelated offense. And this is where the case gets even more interesting. In order to account for the fact that Shatzer was still in custody, the Court distinguishes custody for Miranda purposes from the type of custody that a suspect may be under in normal prison life. According to the Court, they are not the same. In prison-custody the suspect is able to do such things as move around and mingle with other inmates, visit the library, have visitors, get mail and phone calls, work in the prison, and otherwise interact with members of the prison community. In Miranda-custody on the other hand, the suspect’s freedom of movement is further restricted and his contact with the outside world, even the prison world, is further limited. The Court reasoned that in the two and a half years between questionings Shatzer was not in Miranda custody, but rather just prison-custody. Therefore, there had been a sufficient break, allowing the police to reinitiate questioning.
The arbitrariness of the 14 day break in custody and the distinction between Miranda-custody and prison-custody can, and likely will, be debated by commentators well into the future. What is of particular interest to me is how in choosing the 14 day rule, the Court opted for a bright line rule over a fact and factor based analysis, yet, when distinguishing between Miranda-custody and prison-custody, the Court went the opposite direction. Rather then applying the much brighter line rule that custody exists anytime a person’s freedom of movement is restrained, the Court chooses to examine the specific facts of this case and particular factors that might distinguish Miranda custody from prison custody. So why the bright line rule in one context and the fuzzy fact bound rule in the other?
Of course, one answer might be that this is just an example of outcome determinative justice. In order to reach the result it wanted, the Court simply had to take two different approaches. That may very well be the answer. It also may be that the Court simply feels more willing to create bright line rules for a law enforcement audience and less compelled to do so when it is the courts that will be sorting out the issues. Perhaps there is less of a need for a bright line rule on the custody question because, in order for any confession to be voluntary, the Miranda custody would have to be relativly short. This case is a good example of a Court less guided by principle then pragmatisim. It will also be interesting to see just how bright this 14 day line really is in future cases. If past history is any guide, many of the Court’s bright line rules in the Miranda context have dulled over time.
March 15, 2010
In the "Race to the Top," President Obama Takes a Wrong Turn
The Race to the Top, a $4.35 billion dollar competitive grant fund, exposes the major deficit in President Obama's plan for reforming this country's persistently lowest-achieving schools: a reluctance to directly address the relationship between struggling schools and concentrated poverty. Although Massachusetts and Rhode Island are both finalists in this competition, neither state is likely to emerge victorious, even if they are declared winners in this race.
The goal of the Race to the Top is to turn around 5,000 struggling schools in the next five years. Secretary of Education Arne Duncan referred to these schools last summer as our "bottom schools," "dropout factories," and places "where it's just simply not working."
But the Race to the Top's framework for reforming these struggling schools is narrow: individual states are encouraged to intervene primarily by clearing the path for charter schools, replacing teachers and principals, or closing down schools.
Forty states and the District of Columbia submitted applications in the competition's first phase: only 16 finalists were announced and very few winners are expected when a final decision is made next month.
All entrants were instructed by the U.S. Department of Education to identify their persistently lowest-achieveing schools. A number of factors were to be taken into account: the school's Title I status (for schools with a large percentage of low income students or that are located in high poverty neighborhoods), its No Child Left Behind assessments, and for high schools, persistently low graduation rates.
In both Massachusetts and Rhode Island, there were few surprises when their lowest-achieving schools were identified. The sole high school in Central Falls, Rhode Island's poorest, smallest, and most crowded city, was identified and targeted for intervention. Five more schools were identified in Providence.
Two weeks ago, Massachusetts officials identified the Commonwealth's 35 persistently lowest-achieving schools. Most are in Boston, and the others are located in some of the state's poorest cities: Fall River, Holyoke, Lawrence, Lowell, Lynn, New Bedford, and Worcester.
The Massachusetts' Department of Education reported that in these lowest-performing schools "nearly 9 out of 10 [students] are eligible for free or reduced-price lunch based on family income, 21 percent are students with disabilities and 26 percent are limited English proficient." The Central Falls demographics are similar: 96% of public school students qualify for free or reduced-price lunch, while 22% are English Language Learners and 24% receive special education services.
What has bewildered and angered many is the manner in which the federal government has chosen to "help" schools in cities like Central Falls. Instead of seeking to support the school, the students, and the community, the implementation of the president's reform proposals has instead resulted in all of the Central Falls High School teachers and administrators being fired. (full story) With a state unemployment rate of 12.7%, that's assistance Rhode Island can do without.
Any attempt to highlight the tremendous needs faced by the residents of Central Falls (or equally impoverished cities in Massachusetts) is viewed by the "reformers" as an attempt to create excuses for failing schools. The reality is that "failing schools" serve as a convenient excuse for a federal government either incapable or uninterested in helping citizens at the bottom of the socioeconomic ladder.
In both Rhode Island and Massachusetts, many of the cities and towns that contain the lowest-achieving schools also face an array of additional and interrelated problems: a steady and dramatic loss of manufacturing jobs, declining wages, and fewer worker protections in the form of health care benefits or pension plans.
Rather than stepping in to provide workers with what they have lost from the private sector, the federal government has instead chosen to attack the public sector. Placing the spotlight on schools and teachers eliminates the sense of urgency necessary to address issues such as the lack of affordable housing and health care, high unemployment rates, and the loss of worker protections.
On these matters, the federal government is largely absent or ineffective: states and their poorest residents have been largely abandoned and told to fend for themselves. Instead of assisting these hardest-hit communities, the Race to the Top may destroy what's left of them.
-Monica Teixeira de Sousa
The goal of the Race to the Top is to turn around 5,000 struggling schools in the next five years. Secretary of Education Arne Duncan referred to these schools last summer as our "bottom schools," "dropout factories," and places "where it's just simply not working."
But the Race to the Top's framework for reforming these struggling schools is narrow: individual states are encouraged to intervene primarily by clearing the path for charter schools, replacing teachers and principals, or closing down schools.
Forty states and the District of Columbia submitted applications in the competition's first phase: only 16 finalists were announced and very few winners are expected when a final decision is made next month.
All entrants were instructed by the U.S. Department of Education to identify their persistently lowest-achieveing schools. A number of factors were to be taken into account: the school's Title I status (for schools with a large percentage of low income students or that are located in high poverty neighborhoods), its No Child Left Behind assessments, and for high schools, persistently low graduation rates.
In both Massachusetts and Rhode Island, there were few surprises when their lowest-achieving schools were identified. The sole high school in Central Falls, Rhode Island's poorest, smallest, and most crowded city, was identified and targeted for intervention. Five more schools were identified in Providence.
Two weeks ago, Massachusetts officials identified the Commonwealth's 35 persistently lowest-achieving schools. Most are in Boston, and the others are located in some of the state's poorest cities: Fall River, Holyoke, Lawrence, Lowell, Lynn, New Bedford, and Worcester.
The Massachusetts' Department of Education reported that in these lowest-performing schools "nearly 9 out of 10 [students] are eligible for free or reduced-price lunch based on family income, 21 percent are students with disabilities and 26 percent are limited English proficient." The Central Falls demographics are similar: 96% of public school students qualify for free or reduced-price lunch, while 22% are English Language Learners and 24% receive special education services.
What has bewildered and angered many is the manner in which the federal government has chosen to "help" schools in cities like Central Falls. Instead of seeking to support the school, the students, and the community, the implementation of the president's reform proposals has instead resulted in all of the Central Falls High School teachers and administrators being fired. (full story) With a state unemployment rate of 12.7%, that's assistance Rhode Island can do without.
Any attempt to highlight the tremendous needs faced by the residents of Central Falls (or equally impoverished cities in Massachusetts) is viewed by the "reformers" as an attempt to create excuses for failing schools. The reality is that "failing schools" serve as a convenient excuse for a federal government either incapable or uninterested in helping citizens at the bottom of the socioeconomic ladder.
In both Rhode Island and Massachusetts, many of the cities and towns that contain the lowest-achieving schools also face an array of additional and interrelated problems: a steady and dramatic loss of manufacturing jobs, declining wages, and fewer worker protections in the form of health care benefits or pension plans.
Rather than stepping in to provide workers with what they have lost from the private sector, the federal government has instead chosen to attack the public sector. Placing the spotlight on schools and teachers eliminates the sense of urgency necessary to address issues such as the lack of affordable housing and health care, high unemployment rates, and the loss of worker protections.
On these matters, the federal government is largely absent or ineffective: states and their poorest residents have been largely abandoned and told to fend for themselves. Instead of assisting these hardest-hit communities, the Race to the Top may destroy what's left of them.
-Monica Teixeira de Sousa
March 10, 2010
Free Speech and Its Limits
In the wake of the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, in which a majority of the Court lifted certain restrictions on corporate political speech, a Washington Post poll revealed that 8 in 10 respondents opposed the decision. Senator John Kerry, among others, announced his support for a constitutional amendment to overturn the decision and “to make it clear once and for all that corporations do not have the same free speech rights as individuals.”
Amendments to the United States Constitution are rare. The document has been amended just twenty-seven times since 1787; a raft of amendments, including the First Amendment, following almost immediately in 1789, and the most recent amendment was ratified in 1992, more than two hundred years after it was first proposed.
Yet this is not the first time a U.S. Supreme Court decision interpreting the First Amendment expansively has triggered the impulse to amend. Consider the Court’s decision in Texas v. Johnson, more than twenty years ago, in which the Court concluded that, whether we like it or not, the First Amendment protects symbolic expression, including flag burning.
At the time, Texas and a majority of the states had laws on the books prohibiting desecration of the American flag. The case concerned a demonstration at the 1984 Republican National Convention in Dallas. Johnson, while marching with other protestors at the demonstration, doused an American flag in kerosene and set it on fire. After a Texas appellate court overturned Johnson’s conviction, the state appealed to the U.S. Supreme Court, arguing that its interests in preserving the flag as a symbol of national unity and in maintaining order were sufficiently important to overcome the speech protections of the First Amendment.
The Court rejected these arguments, holding that flag burning may be protected as symbolic speech when the speaker intends to send a particularized message that is likely to be understood by observers. The Court noted that there was not in fact a breach of the peace because of Johnson’s flag burning. As for the interest in preserving the flag as a symbol of nationhood, the Court concluded that the state was essentially trying to promote one view of the flag and to punish those who did not agree with that view. But under the First Amendment, as Justice William Brennan wrote for the majority, “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Needless to say, Texas v. Johnson did not end national debate about the issue. Far from it. Following the decision’s release, Congress tried to make it a crime to desecrate the flag, but the Court struck that law down, too, on similar grounds.
Flag burning is still with us: as several local media outlets reported last summer, residents of Rockland, Massachusetts, were upset about the owner of a used car lot who displayed an upside-down American flag on his property to protest the refusal of town officials to renew the license for his lot. One resident, whose son was killed in Iraq, saw the display of the upside-down flag as a sign of disrespect for the men and women who have died in service to the nation.
Many Americans would agree with this sentiment. But not enough, apparently, to fully engage the machinery of constitutional amendment. Indeed, though various efforts have been made since Texas v. Johnson to pass an amendment that would allow the federal and state governments to ban flag desecration, each has failed—despite the fact that a majority of Americans claim to support such bans. Which raises questions: if an effort to undo Texas v. Johnson has yet to succeed, will an effort to undo Citizens United fare any better? Or, is it more likely we will come to acknowledge, as we have in the years following Texas v. Johnson, that, while certain speech cannot be restricted under the First Amendment, honoring that principle does not necessarily mean we have to credit either the message or the speaker?
Lawrence Friedman
Amendments to the United States Constitution are rare. The document has been amended just twenty-seven times since 1787; a raft of amendments, including the First Amendment, following almost immediately in 1789, and the most recent amendment was ratified in 1992, more than two hundred years after it was first proposed.
Yet this is not the first time a U.S. Supreme Court decision interpreting the First Amendment expansively has triggered the impulse to amend. Consider the Court’s decision in Texas v. Johnson, more than twenty years ago, in which the Court concluded that, whether we like it or not, the First Amendment protects symbolic expression, including flag burning.
At the time, Texas and a majority of the states had laws on the books prohibiting desecration of the American flag. The case concerned a demonstration at the 1984 Republican National Convention in Dallas. Johnson, while marching with other protestors at the demonstration, doused an American flag in kerosene and set it on fire. After a Texas appellate court overturned Johnson’s conviction, the state appealed to the U.S. Supreme Court, arguing that its interests in preserving the flag as a symbol of national unity and in maintaining order were sufficiently important to overcome the speech protections of the First Amendment.
The Court rejected these arguments, holding that flag burning may be protected as symbolic speech when the speaker intends to send a particularized message that is likely to be understood by observers. The Court noted that there was not in fact a breach of the peace because of Johnson’s flag burning. As for the interest in preserving the flag as a symbol of nationhood, the Court concluded that the state was essentially trying to promote one view of the flag and to punish those who did not agree with that view. But under the First Amendment, as Justice William Brennan wrote for the majority, “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Needless to say, Texas v. Johnson did not end national debate about the issue. Far from it. Following the decision’s release, Congress tried to make it a crime to desecrate the flag, but the Court struck that law down, too, on similar grounds.
Flag burning is still with us: as several local media outlets reported last summer, residents of Rockland, Massachusetts, were upset about the owner of a used car lot who displayed an upside-down American flag on his property to protest the refusal of town officials to renew the license for his lot. One resident, whose son was killed in Iraq, saw the display of the upside-down flag as a sign of disrespect for the men and women who have died in service to the nation.
Many Americans would agree with this sentiment. But not enough, apparently, to fully engage the machinery of constitutional amendment. Indeed, though various efforts have been made since Texas v. Johnson to pass an amendment that would allow the federal and state governments to ban flag desecration, each has failed—despite the fact that a majority of Americans claim to support such bans. Which raises questions: if an effort to undo Texas v. Johnson has yet to succeed, will an effort to undo Citizens United fare any better? Or, is it more likely we will come to acknowledge, as we have in the years following Texas v. Johnson, that, while certain speech cannot be restricted under the First Amendment, honoring that principle does not necessarily mean we have to credit either the message or the speaker?
Lawrence Friedman
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