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Volokh Conspiracy

Today in Supreme Court History: March 21, 1989

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3/21/1989: Texas v. Johnson is argued.

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  1. George H.W. Bush was “a man of astounding shallowness”. A flag burning amendment, such as what was at issue here, was one of the two pillars of his 1988 campaign. The other was requiring recital of the Pledge of Allegiance. (He did occasionally mumble about a capital gains tax cut.)

  2. From Oyez:

    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.

    In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

    The only thing amazing about this case is that it wasn't 9 - 0.

    The dissents had zero constitutional basis and were merely, "We should make an exception...," excuses.

    1. The dissents had zero constitutional basis and were merely, "We should make an exception...," excuses.

      Yeah, it was "Sure, I support free speech, but this really hurts my feelings."

  3. I wonder if you told modern law school students the basic facts and asked how the court would rule, how many would guess it was a 5-4 decision. I could imagine it being that close 100 years ago. By the 1980s the Supreme Court had turned the First Amendment almost into what it is today.

    1. I mean, even I'm old enough to remember Cold War nationalism.

    2. 100 years ago, people were thrown in jail for protesting the draft and the war. Is there any doubt how such a Supreme Court would have ruled?

      Sometimes I think the Supreme Court's prime directive is to find new exceptions to the constitution's plain language. Other times I am sure of it.

      1. The plain language of what counts as speech today is different than 100 years ago.
        The plain language of person is different today than 160 years ago.

        By sticking with your take on what the plain meaning is, you've joined the club of us living constitutionalists - welcome!

        1. No, Jack, you are delusional too, reading only what you wanted to read, not what I wrote.

          As someone famous said, the plain language of the constitution is a sea of liberty with islands of government. The misinterpretations have led to the current sea of government with islands of liberty.

          Automobile and telephone and third party exceptions to the 4th amendment -- start there and show me how they are reasonable. Tell me what happened to freedom of association and economic liberty, supposedly recognized by the 9th/10th amendments. Tell me how the second amendment allows banning the tools of self-defense.

          You can't.

          1. So you start from an originalist paradigm, asking about changes since the drafting. I already pointed to a couple of places the plain language has changed fundamentally and is thus in tension with an originalist take.
            Moreover, the plain language the Constitution is not written as a prescriptive law, but as a framework; much lies unwritten or assumed (e.g. the executive power, legislative power, judicial power, are all assumed to be understood).

            But I'll meet you in originalism-land, for the sake of argument.
            1) From an originalist point of view, rights are not sacrosanct, they are a thumb on the scales. That's how rights were in England.
            You can see this in the drafting, with the 1A originally using the construction 'shall make no law touching...' which was watered down.

            2) History has shown that freedom of association is in tension with other rights. Lochner shows us how a pinched view of economic liberty leads to remarkably unfree conditions. Rights are a means to the ends of liberty, are they not?

            3) There was also a Civil War, which subsequent amendments changed the relationship between the federal government and the states.

            4) The plain language of general welfare may not make you happy, but there it is.

            1. In other words, you reject the plain intent for a living originalism.

              IANAL. I misled you by saying "plain language" -- I do not mean originalism. I mean the plain intent to not have the government snooping around just because it has the jackboots. The automobile exception is a plain violation of this plain intent; did horses never carry riders out of a town before some constable could get a warrant? Hell, there weren't even government police back then; the current police are that standing army the founders hated so much.

              Don't bother to answer with more lawyerly quibbles about originalism or living constitution. You speak from the viewpoint of justifying your changes, cloaked in whatever quibbles suit you.

              1. Original intent? You didn't provide *any* evidence of intent. Alien and Sedition Acts alone explode that idea.

                Dude you're vastly more outcome oriented than I am. You can tell when questioned on your doctrine you retreat and accuse me of being outcome-oriented when I didn't talk about outcomes at all.

        2. "The plain language of person is different today than 160 years ago."

          Yes, we amended the Constitution to do that as a "legal" matter.

          "The plain language of what counts as speech today is different than 100 years ago."

          You aren't that dumb.

          1. That's not what the plain language of the 14A says.

            Our understanding of personhood, of citizenship, what counts as speech, what counts as cruelty, all sorts of concepts behind the words the Constitution uses, these have all changed since the 1700s.

  4. 4 GOP appointed justices in the majority! Ike's, Nixon's and Reagan's worst mistakes included.

  5. Justice Brennan gave the opinion. When he was drafting the opinion, though, he temporarily misplaced it, and he walked all over the Court building asking "has anyone seen my Johnson?"

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