Monthly Archives: September 2016

Texas v. Johnson: Offensive Speech Under First Amendment (06/21/1989)

Texas v. Johnson

Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

See First Amendment for more.  

Argued: 03/21/1989

Decision Date: 06/21/1989

Decision Record: 5-4; yes

Justices in Favor: William Brennan, Thurgood Marshall,  Harry Blackmun, Antonin Scalia, Anthony Kennedy

Justices Dissenting: William Rehnquist, Byron White, John Paul Stevens, Sandra Day O’Connor


Effect of the Decision

This case protects offensive speech, such as the desecration of a flag, under the First Amendment.


In Favor

In the affirmation side, representing Mr. Johnson, attorney William M. Kunstler claimed, “I would like to suggest briefly to state that this particular act that we’re concerned with here, this 42.09(a)(3) of the Texas statute singles out communicative impact for punishment.

Now, Ms. Drew has avoided that by now… and virtually the state now apparently concedes that you can write out of a statute what Justice O’Connor referred to, the question of whether the actor knows or means that what he’s doing will seriously offend one or more persons likely to observe or destroy or discover his particular act.

That’s out of the statute, apparently, according to the argument because in the reply brief and today she has said essentially what is in the reply brief.

Like Gertrude Stein, “A rose is a rose”, they now say

“A flag burning is a flag burning. “

And they read out of the statute under which he was convicted and which went to the jury and the charge on the question of seriously offend, that’s all out as far as Ms. Drew is concerned.

But it’s not out as far as this court is concerned.

That’s what the conviction was about, that’s what the argument to the jury was about, that’s what the charge was about.

They all mention that.

That’s what the witnesses, Stover, Tucker, and Walker, testified to, that they were seriously offended.

So, this depends on communicative impact for punishment.

They’ve conceded it’s pure speech.

They raise no question arguendo, even, essentially that it is not speech, and concede that.”


On the side of the opposition, attorney Kathi Alyce Drew, who spoke first before Mr. Kunstler, representing Texas, argued, “For purposes of this argument today and with the Court’s indulgence, the state will assume the symbolic speech standard and proceed directly to the question of Texas’ compelling interest in regulating this type of conduct.

Throughout the course of the appellate history in this case Texas has advanced two compelling state interests.

One is the preservation of the flag as a symbol of nationhood and national unity.

The second is the preservation of a breach of the peace, prevention as opposed to punishment for a breach of the peace.

I would like to address first the nationhood interest.

We believe that preservation of the flag as a symbol of nationhood and national unity is a compelling and valid state interest.

We feel very certain that Congress has the power to both adopt a national symbol and to take steps to prevent the destruction of that symbol, to protect the symbol.”


The majority opinion slip was written by Justice William Brennen. He wrote, “Texas’ focus on the precise nature of Johnson’s expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea. If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role — as where, for example, a person ceremoniously burns a dirty flag — we would be saying that when it comes to impairing the flag’s physical integrity, the flag itself may be used as a symbol — as a substitute for the written or spoken word or a ‘short cut from mind to mind’ — only in one direction. We would be permitting a State to ‘prescribe what shall be orthodox’ by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity.”

Then in the dissenting side, Justice William Rehnquist wrote, “Our Constitution wisely places limits on powers of legislative majorities to act, but the declaration of such limits by this Court “is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case.” Fletcher v. Peck, 6 Cranch 87, 128 (1810) (Marshall, C.J.). Uncritical extension of constitutional protection to the burning of the flag risks the frustration of the very purpose for which organized governments are instituted. The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight. I would uphold the Texas statute as applied in this case.”

Also in dissent, Justice John Paul Stevens wrote, “As the Court analyzes this case, it presents the question whether the State of Texas, or indeed the Federal Government, has the power to prohibit the public desecration of the American flag. The question is unique. In my judgment, rules that apply to a host of other symbols, such as state flags, armbands, or various privately promoted emblems of political or commercial identity, are not necessarily controlling. Even if flagburning could be considered just another species of symbolic speech under the logical application of the rules that the Court has developed in its interpretation of the First Amendment in other contexts, this case has an intangible dimension that makes those rules inapplicable.”

My Opinion:

In this case, I would have to agree with the majority opinion. Flag desecration would be considered symbolic speech, which is protected under the First Amendment. Arresting and fining someone for offensive speech such as flagburning would be a violation of the First Amendment.

This is no matter of whether or not the flag should or should not be burned. Mr. Johnson burned an American flag in order to preach his resentment of the Dallas City Hall policies. Like I’ve previously stated, this is symbolic speech. Therefore, not allowing a person for such as thing would be taking away their First Amendment away unconstitutionally.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Loving v. Virginia: Interracial Marriage (06/12/1967)

Loving v. Virginia

Did Virginia‘s antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment?

See Fourteenth Amendment for more.  

Argued: 04/10/1967

Decision Date: 06/12/1967

Decision Record: 9-0; yes

Justices in Favor: John Harlan, Hugo Black, William Douglas, Potter Stewart, William Brennan, Byron White, Earl Warren, Tom Clark, Abe Fortas

Justices Dissenting: None


Effect of the Decision

This case abolished Virginia’s antimiscegenation law, which prohibited inter-racial marriage, because it violated the Fourteenth Amendment.


In Favor

In the side of the affirmation, representing the Lovings, attorney Philip J. Hirschkop argued, “You have before you today what we consider the most odious of the segregation laws and the slavery laws and our view of this law, we hope to clearly show is that this is a slavery law.

We referred to the law itself — oh at first, I’d like to bring the Court’s attention, there are some discrepancy in the briefs between us and the common law especially as to which laws are in essence.

They have particularly said that Section 20-58 and 20-59 of the Virginia Code are the only things for consideration by this Court, and those two Sections, of course, are the criminal section, making a criminal penalty for Negro and white to intermarry in the State of Virginia.

20-58 is the evasion section under which this case particularly arose which makes it a criminal act to people who go outside the State to avoid the laws of Virginia to get married.

We contend, however, Your Honors that there is much more in essence here.

That there’s actually one simple issue, and the issue is, may a State proscribe a marriage between two adult consenting individuals because of their race and this would take in much more in the Virginia statutes.

Sections 20-54 and 20-57 void such marriages and if they void such marriages, you would only decide on 20-58 and 20-59, these people, whether they go back to Virginia and they are in Virginia now, will be subject to immediate arrest under the fornest — fornication statute, and the lewd and lascivious cohabitation statute and more than that, there are many, many other problems with this.

Their children would be declared bastards under many Virginia decisions.

They themselves would lose their rights for insurance, social security and numerous other things to which they’re entitled.

So we strongly urge the Court considering this to consider this basic question, may the state proscribe a marriage between such individuals because of their race and their race alone.”


In the opposition, represented by attorney Bernard S. Cohen, he claimed, “While there is no doubt in our minds that these statutes are unconstitutional and have run afoul of the Equal Protection Clause of the Fourteenth Amendment, we urge with equal strength that the statutes also run afoul of the Due Process Clause of the Fourteenth Amendment.

Now, whether one articulates in terms of the right to be free from racial discrimination as being due process under the Fourteenth Amendment or whether one talks of the right to be free from infringement of basic values implicit in ordered liberty as Justice Harlan has said in the Griswold case, citing Palko versus Connecticut or if we talk about the right to be free from arbitrary and capricious denials of Fourteenth Amendment liberty as Mr. Justice White has said in the concurring opinion in Griswold or if we urge upon this Court to say as it has said before in Myer versus Nebraska and Skinner versus Oklahoma that marriage is a fundamental right or liberty and whether we go further and urge that the Court say that this is a fundamental right of liberty retained by the people within the meaning of the Ninth Amendment and within the meaning of liberty in the Due Process Clause of the Fourteenth Amendment.”


The majority decision for Loving was unanimous. Justice Earl Warren wrote the opinion slip. He wrote, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

My Opinion:

In this case, I agree with the majority opinion. The Fourteenth Amendment clearly expresses that each individual has equal rights, no matter their race. Everyone has the right to marriage. Interracial marriage is just two people of different races exercising their individual rights. The Equal Protection Clause holds that “no states shall deny to any person within its jurisdiction ‘the equal protection of the laws.'” The antimiscegenation law completely contravenes the Equal Protection Clause, because it forbids marriage of different races, when the Clause states that everyone has their own rights, despite their skin color.

Virginia’s antimiscegenation law strongly violates the constitutional right to the Fourteenth Amendment, and so therefore, I affirm the majority opinion.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Fisher v. University of Texas at Austin: Racial Bias In College Acceptance (06/23/16)

Fisher v. University of Texas at Austin

Does the University of Texas’ use of race as a consideration in the admissions process violate the Equal Protection Clause of the Fourteenth Amendment?

See Fourteenth Amendment for more.   

Argued: 12/09/2015

Decision Date: 06/23/2016

Decision Record: 4-3; no

Justices in Favor: John Roberts (RC*), Clarence Thomas (R), Samuel Alito (R)

Justices Dissenting: Anthony Kennedy (LC), Ruth Bader Ginsburg (L), Stephen Breyer (L), Sonia Sotomayor (L)

Justice Elena Kagan did not participate in the decision of the case.


Effect of the Decision

This case allows colleges to take race into consideration when deciding admissions.


In Favor

On the side of Ms. Fisher, attorney Bert W. Rein argued, “In reviewing the Fifth Circuit’s initial decision in what we call Fisher I, seven members of this Court reaffirmed that a clear precondition to the use of race as an admissions factor was the ability to satisfy what was called the “demanding burden of strict scrutiny” articulated in Grutter and Bakke. By establishing that she was considered for admission to UT under a system that discriminated against her on the basis of her race, Ms. Fisher placed upon UT the burden of proving, by evidence of record, that its use of race was, first, in pursuit of a compelling, constitutionally legitimate interest expressed with sufficient clarity and concreteness to allow a reviewing court to determine, first, that the use of race was a necessary last resort in pursuing the interest defined, taking into account reasonably available nonracial alternatives.”


In the opposing side, attorney Gregory G. Garre said, “To pick up on the questions this morning, I’d like to focus on three things.

One, why the record supports the Texas legislature’s conclusion in 2009 that the holistic plan at issue was a necessary complement to the State’s Top 10 Percent Law; two, why the record shows that Texas’s holistic policy has had a meaningful impact on diversity at the University of Texas; and, three, why the record absolutely forecloses any claim that University of Texas has adopted a quota. With respect to the first question of necessity, there are three principle ways in which the record shows that the plan at issue was a necessary complement.

First, as Justice Breyer mentioned, there is a significant portion of the admissions pool, all out-of-state students, all students from Texas high schools that don’t rank, some of the best high schools in the State, and all students just below the top 10 percent who are nevertheless great students who aren’t eligible for admission under the top 10 percent at all. And the Fifth Circuit found that without the consideration of race in the mix for those students, admissions would approach an all white enterprise.”

His argument was cut off there.


In the majority opinion slip, written by Justice Anthony Kennedy, he wrote, “In short, none of petitioner’s suggested alternatives— nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and defined them in 2008. The University has thus met its burden of showing that the admissions policy it used at the time it rejected petitioner’s application was narrowly tailored.”

In the dissenting side, Justice Samuel Alito wrote, “What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve “the educational benefits of diversity,” without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives. Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden. This conclusion is remarkable—and remarkably wrong.”

My Opinion:

In this case, I disagree with the majority and agree with the minority opinion. Race should not matter when deciding applications. All the students should be treated equally. It would be especially unfair to those who worked extremely hard all throughout the years and were more than qualified to attend that college, and was rejected, because their race was taken into consideration, they ended up being rejected. The purpose of college is to gain education, and the people who work the hardest to achieve their goals should be the ones to get rewarded; a lesson many of us have learned all throughout life.

The majority claims that taking race into consideration is lawful under the Equal Protection Clause. However, I fail to see allowing race to be a factor in a decision for acceptance is anywhere near “equal.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right