Court Cases Set a Precedent
In deciding cases, courts must consider earlier cases on similar issues. The issues in such earlier cases set what are called precedents. Below are four summaries of precedents related to Texas v. Johnson. Decide which cases support your position and which do not.

1907  Halter v. Nebraska A Nebraska law forbidding the use of the flag for advertising merchandise — in this case, beer — doesn’t violate the Constitution. The court, however, considered the case only on the question of property rights and not in regard to the First Amendment.

1968  United States v. O’BrienTo protest the war in Vietnam, David Paul O’Brien and three friends burned their Selective Service registration certificates (draft cards) on the steps of the South Boston Courthouse. A draft card indicated that a person was registered for and could be called to serve in the armed forces. A crowd of people had gathered on the steps; some attacked O’Brien and his friends. O’Brien was arrested and charged with violating a law that said mutilating a draft card was illegal. O’Brien said the law violated his freedom of speech.

The Supreme Court ruled 8-1 that O’Brien’s freedom of speech had not been violated. The court said a person could not simply say any activity was “speech.” In addition, it said that the nation’s need to maintain the armed forces was more important than free speech. 

1969  Street v. New YorkIn 1966, James Meredith, the first African-American student to attend the University of Mississippi, was shot. To protest, a New York man named Street burned a U.S. flag in an intersection. When a police officer asked Street if he had burned the flag, Street said, “Yes, that is my flag; I burned it. If they let that happen to Meredith, we don’t need an American flag.” Street was charged with violating a New York law that made it a crime to mutilate, deface, or “cast contempt upon either by words or act” the flag. Street said the law violated his free speech rights.

In a 5-4 vote, the Supreme Court agreed with Street. The court said that though we might disagree with Street’s opinion, his right to express his views was protected by the Constitution. The government may not criminally punish a person for uttering words critical of the flag. It also said that the words were not “fighting words” likely to cause violence among the people who saw Street burning the flag. The justices who disagreed said “Protest does not exonerate [allow] lawlessness.”

1974 Spence v. WashingtonSpence, a college student in 1970, wanted to protest the actions of troops in Cambodia and the killing of students by National Guardsmen at Kent State University. He hung an American flag upside down from his apartment window. Over the flag he placed a peace symbol made from black tape. At his trial, Spence stated his purpose was to associate the American flag with peace instead of war and violence. Spence was convicted of violating a Washington law that prohibited placing anything over a flag. Spence said he was using his freedom of speech. He also pointed out that the tape could be removed.

In a 6-3 ruling, the Supreme Court agreed with Spence. It pointed out that the flag belonged to Spence and was displayed on his own home. The court also said Spence was clearly expressing an idea through his action and that the state could not demonstrate a clear reason for preventing the expression of this idea.

Cases that set precedents
As you prepare your arguments, you may wish to read the full text of one of these four case summaries or review one of the additional cases related to Texas v. Johnson.

1907    Halter v. Nebraska
1931    Stromberg v. People of State of California
1940    Minersville  School District v. Gobitis
1943    West Virginia State Board of Education v. Barnette
1968    United States v. O’Brien
1969    Street v. New York
1971    Cohen v. California
1974    Spence v. Washington