Cases Set a Precedent
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.
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.
United States v. O’Brien—To
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.
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.
Street v. New York—In
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.
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
Spence v. Washington—Spence,
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.
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.
that set precedents
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.
v. People of State of California
School District v. Gobitis
Virginia State Board of Education v. Barnette
States v. O’Brien
v. New York