LawSociety Midterm - Do Laws That Criminalize Flag Burning...

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Do Laws That Criminalize Flag Burning Violate The First Amendment? (Mid-Term Paper) Many cases concerning flag burning as a violation of the First Amendment have evolved over the years. United States v. Eichman , Texas v. Johnson , and United States v. O’Brien are just a few of these cases that have aided in the argument’s persuasive points as to whether laws criminalizing flag burning are constitutional or not. We personally follow the majority opinion and believe that yes, laws criminalizing flag burning violate the First Amendment. The Flag Protection Act of 1989 and the Texas Statute are both laws that are in conflict. The question that arises from the cases is whether the appellees’ prosecution for burning a U.S. flag in violation of the Flag Protection Act of 1989 is consistent with the First Amendment. The category of speech involved is freedom of expression/speech, which is normally protected by the First Amendment. However, protection may be limited and regulated if the content of the message is viewed as offensive or indecent. When reviewing the majority’s opinion, it becomes apparent that laws such as the Flag Protection Act of 1989 and the Texas Statute suppress our rights to freedom of expression as stated in the First Amendment of the U.S. Constitution. The Flag Protection Act fails to focus on the content of the message by concentrating on the physical act of flag burning for its possible communicative impact. Concentrating on the First Amendment, flag burning can be categorized in different ways. Justice Brennan and the majority believe that the freedom of speech, expressed by the act of flag burning, should be viewed as political speech, which entitles it to full protection under the First
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Amendment. Therefore, laws criminalizing flag burning are unconstitutional. The dissenting opinion, delivered by Justice Stevens, argues that the government should protect the symbolic value of the flag without regard to the specific content of the flag burner’s speech. In other words, the message conveyed by the flag does not take a stance on our disagreements. The values portrayed by the flag should be protected by all means necessary because the symbolic values of the flag motivate the average citizen and serve as a reminder of the hardships endured by our nation throughout history. The Court’s decision to place its “stamp of approval” on flag burning has already damaged it as a symbol. Justice Stevens and others believe that, “The freedom of expression protected by the First Amendment embraces not only the freedom to communicate particular ideas, but also the right to communicate them effectively.” This right, however, is not absolute and is not entitled to full protection under the First Amendment. This contradicts the majority, who argue that flag burning should be considered as fully protected speech. Although the views of the pro and con differ substantially, they do reach some
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LawSociety Midterm - Do Laws That Criminalize Flag Burning...

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