RIGHT. LET'S GO AHEAD AND GET STARTED THIS MORNING.
WE ARE GOING TO MOVE INTO BARDES CHAPTER 4,
AS YOU KNOW,
AND THE TITLE BEING "CIVIL LIBERTIES."
SO WHAT WE SEE UP HERE ON THE SCREEN--
IF WE THINK BACK TO THE PRIOR UNIT,
WHEN WE WERE CONTRASTING CIVIL LIBERTIES AND CIVIL RIGHTS,
THIS IS HOW WE BEGAN THAT PARTICULAR UNIT,
TAKING A LOOK AT CIVIL RIGHTS,
OR WHAT THE GOVERNMENT MUST DO OR PROVIDE
TO ENSURE EQUAL PROTECTION AND FREEDOM FROM DISCRIMINATION,
AND WE WERE CONTRASTING THAT
WITH WHAT WE ARE NOW GOING TO LOOK AT IN MORE DETAIL.
AND YOU SEE ON THE SCREEN WITH RESPECT TO CIVIL LIBERTIES,
LOOKING AT WHAT ARE THOSE FREEDOMS THAT ARE GUARANTEED
TO US AS INDIVIDUALS,
OR WHAT ARE THOSE ZONES OR AREAS
THAT GOVERNMENT IS NOT ALLOWED TO INTRUDE INTO
WITHOUT A COMPELLING STATE INTEREST.
AND WE'LL TALK ABOUT THAT LANGUAGE
IN A SEPARATE LECTURE--
YOU KNOW, WHEN ARE THOSE TYPES OF CASES
THAT PERHAPS YOU CAN BE INFRINGED UPON?
AND WHEN WE TALK ABOUT CIVIL LIBERTIES,
WHAT WE'RE GOING TO FIND
IS THIS IS ABOUT A BALANCING OF RIGHTS.
IT'S NOT ABOUT ABSOLUTES, BUT IT'S ABOUT A BALANCING--
WHEN ARE THOSE TIMES AND PLACES IN WHICH YOU ACTUALLY CAN BE
LEGALLY, CONSTITUTIONALLY INFRINGED UPON,
AND WHEN ARE THOSE TIMES THAT YOU CANNOT.
AND SO WE'RE GOING TO START HERE TALKING ABOUT FLAG BURNING.
IT'S DISCUSSED A LITTLE BIT IN YOUR TEXTBOOK,
AND WE'RE GOING TO USE THAT.
IT'S A CONTROVERSIAL-- IT'S A VISIBLE ISSUE,
SO WE'RE GOING TO START HERE AND BEGIN WITH THE REALITY
THAT AT A PARTICULAR TIME--
AND WE'RE GOING BACK A COUPLE OF DECADES TO THE 1980s--
THERE WAS A TEXAS LAW OUTLAWING FLAG BURNING.
AND LET ME SEE IF I CAN GET THIS TO GO FORWARD ONE MORE SCREEN.
THERE WE GO.
AND THIS TAKES US TO TEXAS VS JOHNSON.
YOU CAN SEE WHEN THE CASE WAS HANDED DOWN, IN 1989.
AND THIS ACTUALLY STEMS FROM A PARTICULAR ACTION,
AS YOU COULD IMAGINE.
GREGORY JOHNSON-- MR. JOHNSON BURNS A STATE FLAG
ON THE STEPS OF THE STATE'S CAPITAL IN 1984,
AND THIS EVENTUALLY WORKS ITS WAY UP TO THE COURTS.
THERE'S A CHALLENGE THAT THIS IS A VIOLATION
OF MR. JOHNSON'S FREE SPEECH,
AND SO IN THAT PROCESS OF ORAL ARGUMENTS,
WHEN THE CASE--EVENTUALLY,
THROUGH THE PROCESS THAT WE NOW KNOW, THE RULE OF 4--
AND THAT APPELLATE PROCESS, WHERE A CASE IS ELEVATED
UP TO THE SUPREME COURT LEVEL,
THERE IS A QUESTION-AND-ANSWER PERIOD FROM THE JUSTICES,
AND THE ATTORNEYS HAVE AN OPPORTUNITY
TO PRESENT THEIR CASE TO THOSE 9 JUSTICES.
IN THAT PROCESS OF ORAL ARGUMENTS,
THE JUSTICES AT SOME POINT ASK ABOUT THIS PARTICULAR LAW
AND WHAT IS THE GOAL OF THE LAW.
THAT IS, WHAT IS IN FACT BEING BANNED, IF YOU WILL?
AND YOU CAN SEE THE VISUAL ON THE SCREEN
AND A SUGGESTION THAT WE HAVE BURNING MATERIAL.
WE HAVE A BURNING FLAG,
WHATEVER THAT FLAG MIGHT BE MADE OUT OF.
AND WHAT THE JUSTICES WERE ASKING IS WHAT'S THE GOAL,
WHAT'S THE MOTIVATION OF THE LAW?
IS IT THIS MATERIAL?
AND YOU SEE WORDED HERE ON THE SCREEN--
IS IT THE CLOTH, IF THAT'S THE MATERIAL,
THAT'S BEING TARGETED BY THE LAW, OR IS IT A MESSAGE
THAT COMES ALONG WITH THIS PARTICULAR VISUAL?
IS THERE A MESSAGE THAT COMES ALONG
WITH THE ACTUAL BURNING OF THE FLAG
THAT IS BEING TARGETED BY THE LAW
WHICH IS BANNING THE BURNING OF THE FLAG?
AND SO THE COURT--IN A QUICK CLIFF NOTE FASHION, IF YOU WILL,
THE COURT, AS YOU CAN SEE, RULES VERY CLOSELY--A 5-4--
THE CLOSEST DECISION YOU CAN HAVE AT THE COURT LEVEL,
OBVIOUSLY, WITH 9 MEMBERS.
IT'S A 5-4 DECISION,
AND IT'S VERY CONTROVERSIAL IN THAT IT'S AN EMOTIONAL ISSUE,
BUT IT'S ALSO A CLOSE DECISION.
THIS IS NOT A 9-0 OR 8-1 OR EVEN 7-2 DECISION.
THIS IS A 5-4. VERY CLOSE.
AND THE COURT RULES ULTIMATELY THAT THIS IS IN FACT
AN ISSUE INVOLVING THE RIGHTS OF FREE SPEECH
AND ALSO, DASH, EXPRESSION, WHICH HAS BEEN INTERPRETED
TO BE A PART OF THAT FREE SPEECH GUARANTEE
THAT WE DO FIND GRANTED TO THE INDIVIDUAL
IN THE FIRST AMENDMENT.
AND WITH RESPECT TO THE RULING, WE CAN MAKE IT MORE SPECIFIC.
AND YOU CAN DIG THIS UP, ALSO,
SOMEWHAT OUT OF THE FIRST CHAPTER,
OUR CHAPTER IN BARDES,
WITH RESPECT TO WHAT YOU SEE ON THE SCREEN
AND THE BURNING OF A FLAG.
ARE THERE WORDS SPOKEN?
FLAG BURNING DOES NOT INVOLVE LITERAL SPEECH
FROM A HUMAN BEING,
SO HOW DO WE INTERPRET THAT THE BURNING OF THE FLAG
ACTUALLY DOES INVOLVE SPEECH?
AND THE COURT TERMS THIS-- DEEMS IT AS SYMBOLIC SPEECH,
AND IN PARTICULAR, THE BURNING OF A FLAG
TYPICALLY PROBABLY IS DENOUNCING GOVERNMENTAL POLICIES,
PERHAPS AN INDIVIDUAL HIM- OR HERSELF, AS THE PRESIDENT,
BUT THERE IS VERY CLEARLY, IN THE COURT'S ESTIMATION,
THE MAJORITY OPINION, A POLITICAL MESSAGE
THAT COMES ALONG WITH THE BURNING OF THE FLAG,
AND WHEN YOU GET DOWN TO IT,
THAT WAS THE GOAL OF THE LEGISLATION--
TO END A POLITICAL MESSAGE,
NOT TO BAN AND END ANY ACTUAL TYPE OF BURNING.
AND SO ON THE ANALYSIS,
THE 5 DECIDED THIS IS ABOUT SILENCING SPEECH,
SYMBOLIC SPEECH, BUT SPEECH NONETHELESS
THAT IS PROTECTED UNDER THE FIRST AMENDMENT.
AND IT GETS TO THE QUESTION
OF INTERPRETATION OF THE CONSTITUTION
THAT WE STARTED EARLIER IN THIS CLASS WITH RESPECT
TO WHAT DO THE WORDS IN THE CONSTITUTION ACTUALLY MEAN.
EVEN WHEN THERE IS A CLEAR DELINEATION, IN THIS CASE,
OF A RIGHT TO FREE SPEECH,
NOW WE HAVE A CONTEXT.
WE HAVE A SET OF CASE FACTS
THAT INVOLVES A GENTLEMAN BURNING A FLAG,
AND SO THE COURT HAS TO DECIDE, IS THIS SPEECH?
SO FREE SPEECH IS CLEARLY THERE,
BUT DO THE CASE FACTS HERE JUSTIFY THE EXTENSION OF SPEECH
TO THIS ISSUE OF FLAG BURNING?
AND IN 1989, THE COURT DECIDES, YES, IT DOES. SYMBOLIC SPEECH.
SO HERE WE'RE GOING TO WEAVE IN A CONCEPT THAT IS INTRODUCED,
AND IT'S TITLED INCORPORATION THEORY
IN YOUR BOOK.
WE'LL CALL IT SELECTIVE INCORPORATION IN A SECOND.
THAT'S ANOTHER COMMON NAME FOR IT.
BUT THIS IS-- INCORPORATION THEORY,
WHAT YOU FIND ON YOUR SCREEN--
THE VIEW THAT MOST OF THE PROTECTIONS
OF THE BILL OF RIGHTS,
OR MOST OF THE PROTECTIONS WITHIN THE BILL OF RIGHTS
ARE APPLIED AGAINST STATE GOVERNMENTS
THROUGH THE 14th AMENDMENT'S DUE PROCESS CLAUSE.
NOW, WE'RE IN A FEDERAL GOVERNMENTAL SYSTEM,
SO, AGAIN, GOING BACK MONTHS NOW
TO THE BEGINNING OF OUR SEMESTER,
WE KNOW THAT WE HAVE A FEDERAL GOVERNMENT
AND ALSO MANY, MANY STATE GOVERNMENTS
AND THAT DIVISION OF POWER AND AUTHORITY BETWEEN THE TWO
HAS BEEN A STRUGGLE SINCE OUR FOUNDING,
AND WE CAN MODERNIZE IT WITH DIFFERENT ISSUES,
MEDICINAL MARIJUANA BEING ONE OF THOSE.
INCORPORATION THEORY GOES TO THE BILL OF RIGHTS,
THOSE FIRST 10 AMENDMENTS,
IN THAT THERE ARE MANY LIBERTIES WE FIND IN THERE,
FREE SPEECH BEING ONE,
AND INCORPORATION THEORY IS THAT IDEA
THAT YOUR STATE GOVERNMENTS HAVE TO RESPECT THESE LIBERTIES
AS WELL AS THE FEDERAL GOVERNMENT.
NOW, IF WE JUST GO FURTHER WITH THIS
AND ASK THE QUESTION THAT AT SOME POINT HAS COME UP,
I'M SURE, IN THIS CLASS.
I JUST CAN'T RECALL SPECIFICALLY WHEN AND WHERE AND AT WHAT TIME.
BUT IF WE'RE TALKING ABOUT INCORPORATION THEORY,
OR AS YOU SEE, ALSO SELECTIVE INCORPORATION,
WHICH MIGHT HELP YOU REMEMBER THIS MORE SO
THAN JUST INCORPORATION THEORY
FOR THE PURPOSES WE'RE GOING TO TALK ABOUT,
THE QUESTION YOU SEE ON THE SCREEN--
TAKE A LOOK AT IT. AND WHAT'S THE ANSWER TO THAT?
IS IT STATE OR FEDERAL AS ORIGINALLY WRITTEN?
AND THE ANSWER IS THAT ORIGINALLY
THE BILL OF RIGHTS WERE TARGETED AGAINST THE FEDERAL GOVERNMENT,
THE NATIONAL GOVERNMENT,
AND THAT FIT WITH THE CONTEXT OF THE FOUNDERS' ERA.
THEIR CONCERN WAS OVER TYRANNY FROM KING GEORGE,
OR THE NATIONAL GOVERNMENT,
AND THE STATE GOVERNMENTS WERE CLOSER TO THE PEOPLE,
MORE LIKELY TO BE RESPONSIVE TO THE PEOPLE
AND PROTECTIVE OF THE PEOPLE'S LIBERTIES AND RIGHTS.
AND SO THE BILL OF RIGHTS,
THEY WERE ADDED BY THE ANTI-FEDERALISTS,
REMEMBER, THOSE WERE CONCERNS THAT THE ANTI-FEDERALISTS HAD
OVER A NATIONAL GOVERNMENT TYRANNY,
AND SO THE BILL OF RIGHTS, THOSE THINGS WE FIND IN THERE--
RIGHTS AGAINST CRUEL AND UNUSUAL PUNISHMENT
OR AGAINST SELF-INCRIMINATION, QUARTERING TROOPS IN YOUR HOME,
FREE SPEECH, WHICH FLAG BURNING RELATES TO--
THE ORIGINAL GOAL WAS THAT THE FEDERAL GOVERNMENT
CANNOT INFRINGE UPON OR DENY YOU
THESE LIBERTIES AND PROTECTIONS.
AND SO THIS LAST QUESTION THAT WE SEE HERE--
WHY, THEN, DOES THE TEXAS LAW BANNING FLAG BURNING
APPLY TO MR. JOHNSON?
OK, GREGORY JOHNSON, AGAIN. MR. JOHNSON.
AND WHAT'S THE NAME OF THE CASE THAT WE'VE BEEN DISCUSSING?
CAN YOU REMEMBER IT?
IT'S TEXAS VS JOHNSON,
AND SO IT'S THE STATE OF TEXAS THAT IS BEING SUED.
SO WHY IS IT THAT THIS LIBERTY OF FREE SPEECH
HAS TO BE HONORED NOT ONLY BY THE FEDERAL GOVERNMENT,
WHICH WE KNOW FROM THE FIRST AMENDMENT,
BUT ALSO THE STATE GOVERNMENT?
AND SO WE ARE GOING TO ANSWER THAT QUESTION VERY SHORTLY.
WE ALSO WANT TO ADDRESS AT ONE POINT
THE DISSENTING OPINION.
FLAG BURNING IS CONTROVERSIAL.
A LOT OF PEOPLE WOULD LIKE TO SEE THAT AMERICAN FLAGS
ARE PROTECTED AND NOT BANNED.
SO BEFORE WE GET TO WHY TEXAS HAS TO HONOR IT--
IN 2008 WE TAKE IT FOR GRANTED. IT HAS TO HONOR IT,
AND IT IS BECAUSE OF THIS INCORPORATION THEORY
SOMETIME IN THE PAST.
IN 1925, THE SUPREME COURT RULED
IN A CASE THAT WE'LL SEE IN A SECOND--
GITLOW VS NEW YORK-- THE SUPREME COURT DECIDED
THAT, YES, STATES HAVE TO HONOR FREE SPEECH PROTECTIONS AS WELL.
AND THAT WILL ALL BE ON THE SCREEN.
SO FIRST LET'S JUST TAKE A LOOK AT THE DISSENTING OPINION.
HOW MIGHT THE 5-4 DECISION BE OVERTURNED?
IT IS VERY CLOSE. 1989, ALMOST 20 YEARS AGO.
THE COURT IS MUCH DIFFERENT NOW THAN IT WAS THEN.
PERHAPS THIS COURT TODAY
COULD TAKE UP THE ISSUE OF FLAG BURNING,
AND WE MIGHT SEE A DIFFERENT RESULT.
WELL, HOW MIGHT THAT COME ABOUT?
AND SO LET'S TAKE A LOOK AT THE 14th AMENDMENT.
LET'S ALSO TAKE A LOOK AT THE DISSENTING OPINIONS
THAT WE DO FIND THAT ARE PART OF THIS DECISION
IN TEXAS VS JOHNSON. SO WE HAVE A LOT TO UNPACK HERE.
SO LET'S TAKE A LOOK AT THE SCREEN RIGHT NOW.
YOU SEE "NO STATE SHALL MAKE OR ENFORCE ANY LAW..."
THEN IT GOES ON.
"...NOR SHALL ANY STATE DEPRIVE ANY PERSON
OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF THE LAW."
AND SO WE'RE STILL ATTACHED TO INCORPORATION THEORY,
AND WE WANT TO GET TO THE DISSENTING OPINION AS WELL.
SO "DUE PROCESS OF THE LAW" IS UNDERLINED
AND "STATE" IS UNDERLINED.
SO WE HAVE TEXAS VS JOHNSON.
THE 14th AMENDMENT, COMING IN 1868 AND 1870,
SPECIFIES THAT STATES CAN'T DO THESE THINGS, RIGHT?
WE KNOW THAT THEY CAN'T DENY
EQUAL PROTECTION OF THE LAW, ALSO.
THAT'S ANOTHER PART OF THE 14th AMENDMENT
THAT WE DEALT WITH WHEN WE WERE TALKING ABOUT CIVIL RIGHTS,
AND MAYBE REPRESENTATION AND REDISTRICTING
BAKER VS CARR, OR SOME OF THE AFFIRMATIVE ACTION CASES
TURN ON EQUAL PROTECTION OF THE LAW,
SO WHAT DOES THAT PART OF THE 14th AMENDMENT MEAN.
HERE WE'RE TALKING ABOUT DUE PROCESS OF THE LAW,
ANOTHER IMPORTANT PHRASE OF THE 14th AMENDMENT.
AND SO WHEN WE TAKE A LOOK AT DUE PROCESS OF THE LAW
IN THE 14th AMENDMENT, WHICH SAYS NO STATE CAN DO THIS,
DUE PROCESS, AS YOU CAN SEE ON THE SCREEN,
BASICALLY REFERS TO THE NOTION OF FAIRNESS.
THE STATES CAN'T DENY YOU FAIRNESS BEFORE THE LAW.
SO NOW WE'RE TALKING ABOUT FREE SPEECH
WITH TEXAS VS JOHNSON,
AND FREE SPEECH IS PART OF THE BILL OF RIGHTS.
IT'S PART OF A LIBERTY GUARANTEED TO YOU.
SO DO ALL OF THE RIGHTS CONTAINED IN THE BILL OF RIGHTS
ALSO LIMIT THE STATES?
AND THE QUICK ANSWER IS NO AND THAT THEY ARE NOT ABSOLUTE.
GUNS CAN BE REGULATED AND BANNED
EVEN THOUGH THERE IS A SECOND AMENDMENT PROVISION
FOR THE RIGHT TO BEAR ARMS.
THE SUPREME COURT IS GOING TO RULE ON THAT THIS YEAR IN 2008,
SO THE MEANING OF THAT AMENDMENT IS FOR DEBATE,
AND TO THIS DATE-- TO THIS YEAR,
THE COURT HASN'T SAID THAT GUNS CANNOT BE BANNED OR REGULATED.
THEY ARE, AND SO THAT'S A REALITY
OF WHAT'S BEING DISCUSSED HERE,
IS THAT ALL OF THE AREAS
THAT ARE ADDRESSED IN THE BILL OF RIGHTS,
THEY MAY NOT BE DEEMED AS FUNDAMENTAL
AND CRITICALLY IMPORTANT OR ABSOLUTE.
THEY CAN BE REGULATED AND TAKEN AWAY.
BUT THERE ARE MANY IN THERE THAT DO APPLY AGAINST THE STATES,
AND I'M GOING TO SHOW YOU THIS PARTICULAR TABLE
THAT YOU FIND IN YOUR BOOK,
AND YOU CAN SEE UP HERE, IN 1925, JUST COINCIDENTALLY--
IT'S JUST A COINCIDENCE--
BUT FREEDOM OF SPEECH IS THE FIRST ONE UP HERE
IN GITLOW VS NEW YORK.
AND THE COURT RULED IN 1925 THAT, YES, INDEED,
STATES HAVE TO HONOR FREE SPEECH LIMITATIONS.
THAT IS, THEY CAN'T PLACE LIMITATIONS ON YOUR FREE SPEECH
WITHOUT A COMPELLING REASON TO DO SO.
AND YOU CAN SEE SOME OF THE OTHER ISSUES
THAT HAVE ALSO BEEN SELECTIVELY APPLIED TO THE STATES
ON A CASE-BY-CASE BASIS.
THIS IS SELECTIVE INCORPORATION.
IN GITLOW VS NEW YORK,
THE SUPREME COURT APPLIED SPEECH TO ALL STATES.
IN OTHER AREAS, IN OTHER CASES, THE EXCLUSIONARY RULE--
WE'LL TALK ABOUT MAPP VS OHIO LATER.
ROBINSON VS CALIFORNIA
EXTENDED NO CRUEL AND UNUSUAL PUNISHMENT TO THE STATES,
SO THE COURT HAS TO DECIDE
IS LETHAL INJECTION, THE WAY IT'S DONE,
IS THAT CRUEL AND UNUSUAL?
AND IT JUST RECENTLY RULED THAT, NO, IT WAS NOT.
AND SOME OF THESE OTHERS--
RIGHT TO PRIVACY WE TALKED ABOUT EARLIER,
GRISWOLD VS CONNECTICUT IN 1965.
THAT WAS THE INCORPORATING CASE FOR PRIVACY
THAT THE STATES COULD NOT INFRINGE UPON.
AND SO YOU SEE UP HERE, TABLE 4-1,
"INCORPORATING THE BILL OF RIGHTS
INTO THE FOURTEENTH AMENDMENT,"
ON A CASE-BY-CASE BASIS, OR SELECTIVELY--
HENCE, SELECTIVE INCORPORATION--
THE SUPREME COURT, OVER DECADES--
AND YOU CAN SEE THIS TABLE-- 1925 DOWN TO 1965--
HAS APPLIED A VARIETY OF THESE PROVISIONS
IN THE BILL OF RIGHTS
TO APPLY TO THE 50 STATES AS WELL.
AND SO LET'S COME BACK HERE TO GITLOW VS NEW YORK
JUST TO GET SOME TEXT ON THE SCREEN.
IN 1925, AS THAT TABLE REFERENCES,
IT IS THE INCORPORATING CASE FOR FREE SPEECH,
AND I'VE PASTED IN HERE ALSO
THAT DEFINITION FOR INCORPORATION THEORY AS WELL
JUST TO REMIND US, THE VIEW THAT MOST OF THE PROTECTIONS
IN THE BILL OF RIGHTS
MUST ALSO APPLY AGAINST STATE GOVERNMENTS.
AND SO IN 1925,
FREE SPEECH PROTECTIONS WERE EXTENDED FOR PEOPLE
AGAINST STATE INTRUSION AS WELL.
AND SO WHEN THE STATE OF TEXAS PASSES A LAW
THAT SAYS YOU CANNOT BURN A FLAG,
WE KNOW NOW AS OF 1925
THAT THE STATE OF TEXAS CAN'T DO THAT
UNLESS IT HAS A COMPELLING STATE INTEREST,
A VERY, VERY IMPORTANT REASON TO DO SO.
MR. JOHNSON DOESN'T HAVE AN ABSOLUTE RIGHT TO FREE SPEECH,
BUT IF IT'S GOING TO BE INFRINGED UPON,
AGAIN, THE STATE GOVERNMENT OR CONGRESS
HAS TO HAVE A COMPELLING STATE INTEREST.
THAT IS, A VERY, VERY IMPORTANT REASON TO LIMIT THAT.
AND IN THIS CASE, IT WASN'T FOUND TO BE TRUE.
AND SO LET'S TAKE A LOOK HERE.
FLAG BURNING-- POSSIBLE RATIONALE
FOR PROTECTION-- OR PROTECTING THE FLAG
IN THE DISSENTING OPINION,
AND DISSENTING OPINIONS ARE PUBLISHED
JUST LIKE THE MAJORITY OPINION.
SO LET'S TAKE A LOOK AT THIS BULLET POINT HERE,
SINCE WE KNOW THAT FREE SPEECH APPLIES TO THE STATES.
HOW COULD THIS DECISION BE OVERTURNED
BY THE CURRENT COURT OR SOME FUTURE COURT?
AND THE FIRST POINT HERE IS WE CAN TAKE A LOOK AT FLAG BURNING.
IS FLAG BURNING...?
AND HERE--IS FLAG BURNING A BEHAVIOR, OR IS IT SPEECH?
IS IT THE SPOKEN WORD?
AND DEPENDING UPON HOW YOU ANSWER THIS QUESTION,
YOU MIGHT SEE HOW YOU CAN BE IN THE 4--
THAT IS, THE DISSENTING SIDE--
OR IN THE 5, THE MAJORITY OPINION.
AND IF YOU JUST THINK ABOUT IT,
WE CAN TALK ABOUT ALL KINDS OF THINGS,
AND WE HAVE MUCH MORE FREEDOM TO USE OUR SPEECH.
WE CAN TALK ABOUT DISROBING
AND RUNNING ACROSS THE CITY OR THE CAMPUS,
BUT AS SOON AS YOU DO IT, THAT'S BEHAVIOR.
NOW YOUR BEHAVIOR IS LIMITED.
YOU CAN BE PUNISHED FOR YOUR BEHAVIOR.
SO IF YOU BELIEVE THAT FLAG BURNING IS REALLY A BEHAVIOR,
IT IS MUCH MORE--
TO SOME, IT IS MUCH MORE PROVOCATIVE AND VISUAL.
IT'S LIKE A FIGHTING WORD AS OPPOSED TO A POLITICAL MESSAGE,
AND FIGHTING WORDS RECEIVE MUCH LESS PROTECTION,
EVEN IF IT IS SPEECH, THAN POLITICAL WORDS.
BUT IF WE VIEW THIS SIMPLY AS A BEHAVIOR,
WHICH MANY IN THE DISSENT DID,
THEN THE STATE CAN REGULATE IT.
OUR BEHAVIORS ARE REGULATED ALL THE TIME.
EVEN POLITICAL BEHAVIORS CAN BE REGULATED.
AND THAT IS AN INTERPRETIVE QUESTION.
IS FLAG BURNING A BEHAVIOR AT ITS CORE,
OR IS IT ABOUT SPEECH AT ITS CORE, SYMBOLIC SPEECH?
AND HOWEVER YOU DECIDE THAT, IT MIGHT TAKE YOU
TO DECIDE THAT FLAG BURNING CAN BE BANNED OR CANNOT.
AND THIS ISSUE HERE IS REALLY THE HEART AND SOUL
OF THE DEBATE OVER FLAG BURNING.
IS IT A POLITICAL SPEECH? IS IT POLITICAL?
DOES IT DESERVE POLITICAL PROTECTION
AS A POLITICAL MESSAGE,
OR IS IT BEHAVIOR, WHICH CAN BE REGULATED?
NUMBER 2 HERE IS JUST THE MORE EMOTIONAL ELEMENT TO IT,
AND THAT IS THE FLAG IS A SACRED SYMBOL.
IT JUST OUGHT TO RECEIVE PROTECTION, YOU KNOW,
AND THAT JUST ADDS EMOTIONAL POWER TO THE ARGUMENT,
BUT NUMBER 1 IS THE REAL ARGUMENT IN THE 4.
IS IT BEHAVIOR OR THE SPOKEN WORD?
AND SO WE CAN LOOK IN THE DISSENTING OPINION
AND GET A SENSE OF HOW A FUTURE COURT
MAY CHANGE TEXAS VS JOHNSON, WHICH IS OUR PRECEDENT.
SO, WITH RESPECT TO MAJORITY VERSUS MINORITY RIGHTS
IN FLAG BURNING,
THERE ARE NOT MANY FLAG-BURNING INCIDENTS EVER
IN ANY GIVEN YEAR IN THE UNITED STATES
WITH 300, YOU KNOW, MILLION PEOPLE.
IT IS A VERY SMALL MINORITY THAT EVER DO THIS,
AND IT IS VERY UNPOPULAR, AND YET IN 1989,
THE SUPREME COURT, AS WE SEE ON THE SCREEN,
GRANTED OR EXTENDED CONSTITUTIONAL PROTECTIONS--
THE HIGHEST COURT IN THE LAND
REACHED DOWN AND EXTENDED CONSTITUTIONAL PROTECTION
TO A VERY UNPOPULAR MINORITY.
SO, DO WE HAVE A TYRANNY OF THE MAJORITY?
WELL, YOU COULD TAKE A LOOK AT FLAG BURNING
AND SAY, "WELL, IF WE DID,
WE WOULD HAVE NOT ALLOWED FLAG BURNING TO EVER OCCUR."
BUT YET WE HAVE EXTENDED THAT CONSTITUTIONAL PROTECTION
TO AN UNPOPULAR GROUP, WHICH SUGGESTS OTHERWISE.
SO, AN UNPOPULAR ACTION, AN UNPOPULAR GROUP
GETTING CONSTITUTIONAL PROTECTION BY THE COURT.
WELL, CONGRESS REACTS.
CONGRESS PASSES THE FLAG PROTECTION ACT IN 1989,
YOU KNOW, AS A RESULT
OF THIS UNPOPULAR SUPREME COURT DECISION
GRANTING PROTECTION TO FLAG BURNERS.
AND THE ACTUAL VOTE, I FORGET WHAT IT WAS,
BUT IT PASSED PRETTY EASILY IN CONGRESS
IN BOTH THE SENATE AND ALSO THE HOUSE OF REPRESENTATIVES.
AND THE COURT TOOK THIS CASE UP VERY QUICKLY.
TEXAS VS JOHNSON, JUST AS A POINT OF FACT--
REMEMBER, IT WAS A STATE LAW.
SO NOW CONGRESS PASSES A FEDERAL LAW.
SO MAYBE THE COURT WOULD VIEW IT DIFFERENTLY.
THIS IS A COEQUAL BRANCH--
THE FEDERAL COURT SYSTEM AND THE FEDERAL LEGISLATURE
VERSUS MAYBE A STATE LEGISLATURE
VERSUS A CONSTITUTIONAL PROVISION
IN THE FIRST AMENDMENT.
AND THE COURT RULES IDENTICALLY IN U.S. VS EICHMANN IN 1990,
THAT THE FEDERAL LAW-- IT'S THE SAME RATIONALE.
IT'S THE SAME 5-4 BREAKDOWN, THE SAME ARGUMENTS
IN U.S. VS EICHMANN AS WE FIND IN TEXAS VS JOHNSON,
AND, AGAIN, THE SUPREME COURT
RULES THAT THIS IS AN UNCONSTITUTIONAL VIOLATION
OF PROTECTED POLITICAL SPEECH.
YOU COULD ADD IN PARENTHESES SYMBOLIC SPEECH.
IT'S EXPRESSION. IT'S POLITICAL EXPRESSION.
ALL OF THOSE SAME ARGUMENTS THAT WERE PRESENTED
IN TEXAS VS JOHNSON ARE DUPLICATED AGAIN.
THE COURT RULES NO DIFFERENTLY IN EICHMANN
THAN IT DID IN TEXAS VS JOHNSON.
AND SO WITH RESPECT TO CIVIL LIBERTIES
AND INTRODUCING IT HERE IN PART 1,
WE WANT TO RECALL THE DEFINITION OF CIVIL LIBERTIES
AS OPPOSED TO CIVIL RIGHTS--
AREAS OF FREEDOM THAT ARE GRANTED TO THE INDIVIDUAL
THAT THE GOVERNMENT CANNOT INTRUDE UPON
WITHOUT A VERY, VERY IMPORTANT INTEREST
WHICH WE CALL A COMPELLING STATE INTEREST.
AND IF YOU HAVE ANY QUESTIONS ON FLAG BURNING,
GITLOW VS NEW YORK,
OR ANY OF THE LECTURES IN THIS UNIT,
REMEMBER, PLEASE POST THEM IN CLASS SPACE.