American Constitutionalism in Historical Perspective (packet)

Within constitutional power of the govt: raising a military.

Furthers an important or substantial govt/action-based interest: protecting the nation

Govt interest is unrelated to the suppression of free expression (directed at action not at speech): have to ignore the legislative history to find in favor of congress on this factor. Created a reason here – banning burning other people’s cards.

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   Redundancy argument: 1965 act d/n add anything, previous 1948 statute fit the point. New act adds another layer of liability when would have just prosecuted under 1948 act for nonpossession
   
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   Ct’s response: if look at 2 statutes not redundant: 1965 gives you additional deterrence and it’s addressed at distribution and not possession. Banning burning of other ppl’s cards not just one’s own, so more conduct is criminal.
   

Incidental restriction on 1^st Amend freedoms no greater than essential (if speech suppressive, no greater than necessary to the furtherance of that interest)

Street v. NY, 1969 (as applied): D convicted of burning the flag in protest of James Meredith’s assassination. Harlan strikes down the statute. Finds that this is not fighting words, incitement to riot, no clear and present danger, it is offense in the public forum which is protected. Focuses on his speech, not his actions. His speech comes out of conscientious conviction, right of moral dissent at core of free speech. Avoiding flag burning, this was a clear expression of disgust, the state c/n sanitize the public from hearing this kind of criticism.

Spence v. Washington: Kent State protestors shot by the Guard and invasion of Cambodia. Spence tapes peace sign to the flag to express protest. Statute is misleading and really suppresses showing particularized message. No risk that the acts would mislead viewers into assuming that the gov’t endorsed his view. Avoiding facing the issue of whether banning flag burning is unconstitutional. Citizen speaking mind by desecrating flag—which is effectively protected—more subversive, more protected

Texas v. Johnson, 1989: D protesting govt and corporate positions on nuclear energy. Convicted for burning flag while saying “America the red, white, and blue, we spit on you.” Court strikes down conviction. Finds that this is symbolic speech after going through other categories

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   Breach of the peace: Not a breach of the peace case because no clear and present danger
   
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   Offensive to the public: inadequate since offensive speech is most important
   
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   Fighting words: not attacking individuals directly.
   
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   Symbolic: protecting national symbols is not sufficient since at core of protected speech requiring the highest level of scrutiny since content based. Must have toleration in this area, ppl can decide to praise the flag or not on their own. Statute is speech directed when apply O’Brien test b/c burning flag is communicative act and state c/n censor that form of protest. American flag i/n always worthy of praise, ppl can use any voc they want to protest.
   
5. 
   Congress has threatened anti-flag burning statutes which have been struck down—US v. Eichman: this is core of protected speech, finds Flag Protection Act of 1989 is unconstitutional. Content-based limitation—interest related to suppressing free expression.
   

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