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.