Media Law Final - Ch2 - 1St Amendment

Front 1

Flag-burning cases (2)

Back 1

Texas v. Johnson & United States v. Eichman

Front 2

Texas v. Johnson, USSC 1989

Back 2

Gregory Johnson burned a U.S. flag at Republican National Convention in Dallas in 1984. Johnson was convicted on a state statute that prohibited flag desecration. Texas Court of Criminal Appeals (highest court in Texas) overturned his conviction. USSC affirmed by a 5-4 vote. “Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Court used strict scrutiny.

Front 3

United States v. Eichman, USSC 1990

Back 3

Congress passed the Flag Protection Act of 1989. Instead of a state law, the court considered a federal statute. Same 5-4 majority overturned Flag Protection Act.

Front 4

Aftermath of flag-burning cases

Back 4

Various attempts to pass a constitutional amendment outlawing flag desecration. “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” In 2006, the U.S. Senate was one vote short of supporting the amendment (needed 2/3 of the vote, 67 votes). Had it passed the Senate (with two-thirds vote) and the House with two-thirds vote, the amendment then would have gone to the states for approval. 3/4 of states would have to ratify the amendment

Front 5

New York Times v. United States (aka Pentagon Papers), USSC 1971

Back 5

Daniel Ellsberg leaks classified study. NYT & Washington Post publish first installment in summer of 1971.

Nixon admin sought injunction to stop newspapers from continuing to publish. Nixon still wanted newspapers to stop publishing, they know because they read the same papers and its accurate.

2 federal courts—two different results. One orders NYT to stop publishing; other allows WP to continue publishing. USSC grants cert. in extraordinary fashion.

Gov't argues that publishing the Pentagon Papers harms national security & foreign relations. Newspapers argue that the government’s prior restraint is unconstitutional.

The key is the injunction—can the government stop the newspapers from publishing because of their perceived threat to national security? Court said no; “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”

Is this decision a victory for the press? Yes & no: The decision left open the possibility that prior restraints may be constitutional... if the government proved the threat to national security.