Daily Archives: May 28, 2017

President-elect Donald Trump's recent comments about prosecuting flag-burning protesters hasstarted yet another debate about the issue. But in the end, the only Justice left on the Supreme Court from the 1980s could have the final say on the matter.

Since Election Night, there has been a renewed interest in the constitutional subject after several anti-Trump protesters burned flags in public to protest his win over Hillary Clinton. On Tuesday, Trump added fuel to the debate with a provoking message on Twitter: Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!

Flag burning, as weve discussed in detail on this blog and at the National Constitution, is a legal debate that goes back decades, and in the minds of the Supreme Court, has been settled since 1990.

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In our Interactive Constitution project, scholars Geoffrey R. Stone and Eugene Volokh explained back in September 2015the basic concept of symbolic speech in the First Amendment, which reads that Congress cant make laws that abridging the freedom of speech or of the press.

The Supreme Court has interpreted speech and press broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like, said Stone and Volokh.

The Supreme Court has held that restrictions on speech because of its contentthat is, when the government targets the speakers messagegenerally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information the people should be allowed to hear.

Stone and Volokh also noted that hasnt always been the case. Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crimesuch as speech condemning the military draft or praising anarchismcould be punished. But since the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s, they concluded.

Two landmark Supreme Court decisions ruled on the burning of American flags at protests. In 1989, the Court first established flag burning as a protected First Amendment act inTexas v. Johnson.Back in 1984, Gregory Lee Johnson burned a flag at the Republican National Convention in Dallas in a protest about presidential candidates Ronald Reagan and Walter Mondale. Officials there arrested Johnson and convicted him of breaking a state law; he was sentenced to one year in prison and ordered to pay a $2,000 fine.

In June 1989, a deeply divided Court voted 5-4 in favor of Johnson, and against the state of Texas. Johnsons actions, the majority argued, were symbolic speech political in nature and could be expressed even if it upset those who disagreed with him.

The Courts Johnson decision only applied to the law in the state of Texas. In response, Congress passed a national anti-flag burning law called the Flag Protection Act of 1989 sponsored by a House member from Texas. The final bill approved by the Senate in October 1989 made it unlawful to maintain a U.S. flag on the floor or ground or to physically defile such flag. The bill, however, asked for an expedited Supreme Court review to consider constitutional issues arising under this Act.

There were flag-burning protests the day the federal law went into effect in late October 1989. Arrests were made at protests in Seattle and Washington, D.C., but federal judges dismissed the charges based on the Johnson decision. Government lawyers appealed directly to the Supreme Court, and the same Justices who heard the Johnson case considered United States v. Eichman in May 1990 with the same outcome.

In the majority were Justices William Brennan (who wrote both majority decisions), Anthony Kennedy, Thurgood Marshall, Harry Blackmun and Antonin Scalia. The dissenters were Chief Justice William Rehnquist, John Paul Stevens, Byron White and Sandra Day OConnor.

The decisions remain controversial to the present day, and Congress in 2006 attempted to pass a joint resolution to propose an amendment to the Constitution to prohibit flag desecration, which failed by just one vote in the Senate.

For the incoming President Trump, the only likely option short of a constitutional amendment would be a change of heart at the Supreme Court. But even with a new member joining the Court next year, there are four members of its liberal bloc still in place, as is Justice Anthony Kennedy, the only member of the 1989/1990 Rehnquist court on the current bench.

It was Kennedy who wrote the concurring opinion for the majority in the Johnson decision, where he agreed with the other four Justices (including Scalia) that Johnsons acts were speech, in both the technical and the fundamental meaning of the Constitution."

The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result, Kennedy wrote in 1989.

I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit, Kennedy added. It is poignant but fundamental that the flag protects those who hold it in contempt.

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Filed Under: First Amendment

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Flag burning and the First Amendment: Yet another look at the ...

Its been said that you can tell whats really inside a person when you see how they perform under stress. You can watch them display a certain demeanor on Sundays and out in public, but, as the saying goes, When they are squeezed, watch what really comes out.

A reporter got in his face, as reporters do to get the story. He reacted with violence and a vulgar command, repeating it more than once. He didnt have any trouble saying this. It came out easily when he was squeezed, so you can imagine that it wasnt the first time hes said it.

Hell be carefully guarded in the future to allow only friendly types anywhere near him. It will make living in Washington and in Montana a lot harder, living in a prison like that.

As the troupe of actors crisscrosses Montana next summer, we can admire the cargo trailer featuring the family name. It will also appear on the program for the local symphony, along with a symbol to represent their faith. Religious holy books are often held up and quoted when they are needed to prove a point. Watch how they are followed in daily life.

The U.S. Constitution is held up when we want to strengthen the Second Amendment, to sell an assault rifle or condemn a policy we dont like. Is it held up to protect the First Amendment, freedom of the press?

Dont ask any tough questions. Access to your leaders means access to them if you agree with them, even more access if you bring your checkbook. Now representing us, the courageous duo, Sen. Runandhhide and Congressman Runandhide, who join President Integrity to make America great again.

Judge not, that you not be judged. The measure you give will be the measure you get.

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Gianforte should remember First Amendment, too - The Bozeman Daily Chronicle

So the U.S. Court of Appeals for the 9th Circuit held Thursday, in Taub v. City & County of S.F.:

Plaintiffs Oxane Gypsy Taub and George Davis , self-described body freedom advocates, appeal the dismissal of their claims against the City and County of San Francisco and the San Francisco Police Department Plaintiffs allege that Defendants violated their First Amendment rights by enforcing San Franciscos public nudity ordinance.

1. Public nudity is not inherently expressive, but it may in some circumstances constitute expressive conduct protected under the First Amendment. Even if Plaintiffs public nudity at political rallies was entitled to First Amendment protection, however, we hold that the challenged ordinance is a valid, content-neutral regulation as applied to Plaintiffs expressive conduct under United States v. OBrien (1968). OBrien is the applicable test here because the ordinance is aimed at the conduct itself, rather than at the message conveyed by that conduct.

The challenged ordinance satisfies [the] OBrien factors. [T]he ordinance furthers San Franciscos important and substantial interests in protecting individuals who are unwillingly or unexpectedly exposed to public nudity and preventing distractions, obstructions, and crowds that interfere with the safety and free flow of pedestrian and vehicular traffic. San Franciscos interest is unrelated to the suppression of free expression, because the ordinance regulates public nudity whether or not it is expressive. [And] the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. The ordinance prohibits only exposure of ones genitals, perineum, or anal region, during daily activities in the streets of San Francisco, which is essential to meet the Citys goals of preventing distraction and offense to citizens not expecting to be confronted with such private parts of other persons anatomy.

Plaintiffs [also requested] leave to amend [their] Complaint in order to plead additional facts relating to the expressiveness of their nude rallies and demonstrations. Because we conclude that San Franciscos public nudity ordinance is a valid regulation under the OBrien test, even if we assume that more of Plaintiffs conduct was likely to communicate a message to those who saw it, Plaintiffs complaint would not be saved through further amendment.

Recall that, despite the occasional talk of the First Amendment protecting nude dancing, the Supreme Court has held that a ban on public nudity and even one that extends into strip clubs is constitutionally permissible, see Barnes v. Glen Threatre, Inc. (1991). On the other hand, if a city does allow public nudity for some political events, then it might not be able to deny the same rights to people who want to participate in other events (see, e.g., this post); the 9th Circuit opinion did not deal with this issue.

Excerpt from:
No First Amendment right to political public nudity even in San Francisco - Washington Post

Huffington Posts senior culture writer, Zeba Blay, blasted Vice President Mike Pence on Monday for perverting the idea of free speech itself during his recent commencement address at the University of Notre Dame. However, her own editors had to correct her faulty understanding of the First Amendment.

The original version of Blays piece apparently contained an argument that the Bill of Rights doesnt protect hate speech. The websites editors later added a correction at the end of post: An earlier version of this story indicated that the First Amendment never protects hate speech. It does.

Even with the correction from her editors, Blay still attempted to defend the speech codes, safe spaces, tone policing, [and] administration-sanctioned political correctness that the Vice President singled out for criticism during his commencement address.

The Huffington Post writer underlined that Pences pristine ideal of free speech' is too often used to dismiss legitimate criticism of language and policies that harm marginalized communities. She cited how figures like Milo Yiannopoulos, Ann Coulter, and Bill Maher have invoked the free speech argument when theyve been called out, criticized, or boycotted for their rhetoric.

Blay continued by dubiously claiming that none of them, however, have actually had their speech curtailed, and set up a straw man.

They have never been thrown in jail for things like inciting racist and sexist abuse against comedian Leslie Jones, or complaining about Jews in America, or suggesting Muslims are inherently violent. Indeed, it wasnt until Yiannopoulos started speaking positively about pedophilia that he actually faced any tangible repercussions.

Of course, individuals right to free speech can be restricted without being thrown in jail. Coulters planned speech at the publicly-funded University of California, Berkeley was cancelled because activists threatened to disrupt the event. The left-wing ACLU criticized the institution for this move, and outlined that the hecklers veto of Coulters Berkeley speech is a loss for the 1st Amendment. We must protect speech on campus, even when hateful.

The Huffington Post culture writer later emphasized that contrary to popular belief, free speech, in the context of the Constitution, actually does have limits. The First Amendment does not protect speech that incites violence, fraud, or child pornography, or certain forms of obscenity. It puts limits and restrictions on slander, and intellectual property.

Blay also asserted that safe spaces do not suppress anything they level the playing field in a landscape where so many of those who bemoan political correctness do so at the expense of already marginalized communities.

Near the end of her piece, the author lambasted appeals to free speech as ultimately just a rhetorical ploy to normalize ideas that oppress others. And complaining when those who are oppressed call out these ideas, as is their right, is another petty ploy.

Blays column isnt the first time that this sort of interpretation of the First Amendment has appeared in media circles. Back in May 2015, CNNs Chris Cuomo, who has a law degree, made an identical argument on Twitter: hate speech is excluded from protection. dont (sic) just say you love the constitutionread it.

Conservatives on the social media outlet sparred with Cuomo over his assertion. The CNN anchor even got some flak from the left, as Salon took him to task for his gaffe about the First Amendment.

[image via screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

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Huffington Post Apparently Doesn't Understand How The First Amendment Works - Mediaite

Theres a reason your cell phone isnt as inundated with telemarketing robocalls as your landline is (if you still have a landline): federal law doesnt allow itfor now. The Federal Communications Commission is considering a proposalthat would chip away at that protection by allowing organizations and companies to leave voicemail on your cell phone without ever making the phone ring. And the Republican National Committee is all for it.

Ina comment filed with the FCCon Friday, the RNC said it felt the telecom agency should clear the way for organizations including, apparently, itself to auto-dial directly to voicemail inboxes with prerecorded pitches. Failing to permit the practice, the RNC warned, could threaten the First Amendment rights of political groups.

Political organizations like the RNC use all manner of communications to discuss political and governmental issues and to solicit donations including direct-to-voicemail messages, the RNC told the FCC. The Commission should tread carefully so as not to burden constitutionally protected political speech without a compelling interest.

Its not clear why the First Amendment would be threatened by a ban on ringless voicemail spam if its not threatened by a ban on robocalling to cell phones, but maybe thats a slippery slope the Republicans are trying to set up. Shoot, maybe a year or two down the roadthe Republicans willargue that it would threaten their First Amendment rights for the FCC to prevent them from installing malware on our computers that sends constant pop-up Trump ads.

The Republican Party joins the U.S. Chamber of Commerceand, of course, every damn spam telemarketer in pushing the FCC to allow ringless voicemail. Lets hope that theengineers at cell phone companies are coming up with filtering technology to send all ringless voicemail straight to the trash.

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Republicans claim that spamming your voicemail is their First Amendment right - Daily Kos