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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

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