damnation.creative

In the case of Texas v. Johnson, The Supreme Court came to a 5-4 decision in Johnson's favor, declaring that the Texas statute regarding desecration of the American flag was unconstitutional. The court first had to determine whether the First Amendment protected "non-speech acts" since Johnson wasn't convicted for any verbal communication. They needed to prove was whether Johnson's burning of the flag constituted expressive conduct or not. Out of nine judges, five decided that Johnson's action constituted expressive conduct therefore permitting him to invoke the First amendment in challenging his conviction. The majority opinion was written by William J. Brennan, Jr. joined by Justices Marshall, Blackmun, Scalia, And Kennedy who also wrote a concurrence. In his opinion Justice Brannan says " The First Amendment literally forbids the abridgment only of "speech", but we have long recognized that its protection does not end at the spoken or written word. While we have rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," . . . we have acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments," ... (SOURCE)

. . . To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do. . . . (SOURCE)