The First Amendment and Texas Law

This essay is on the law cases Virginia v. Black and Texas v. Johnson.

The issues before the court in the two cases were related to the first Amendment about the speech. Hate speech, in particular, was the concept that was analyzed. In Texas vs. Johnson, the issue was whether cross burning is one of the constituents of symbolic speech as provided by the First Amendment. In Virginia vs. Black, the issue was whether cross burning statutes in Virginia or any other state as a prima facie evidence unconstitutional or not (Holzer, 649).

In Texas vs. Johnson, the court ruled in favor of Johnson. It argued that cross burning constitutes symbolic speech and the First Amendment in the Constitution protects it. The reasoning of the majority argued that the freedom of speech protects some of the actions that are seen by the society as very offensive. However, the outrage of the society is not a justification to suppress the free speech. The majority argued that the Texas Law discriminated upon the viewpoint in that it allowed actions that were respectful of venerated objects that include the burning of a worn-out flag (Holzer, 649).

In Virginia vs. Black, the court ruled that such a statute was unconstitutional although the majority argued that a state may ban cross burning if it is carried out with the intention to intimidate. Using the act as a prima facie was found to be unconstitutional by the court, which means that the state of Virginia cannot convict a person on the ground that he or she burns a cross unless such an act is done with the intention of causing harm. The judges asserted that in the case of the statute remaining as it is, a citizen's ideas might be suppressed and not expressed. It was likely that one may be convicted of such offenses. The court argued that it is important and necessary to create a separation between the expression of anger or hatred from the intentions of causing harm or threat when it comes to the ground of lawful conviction. It is therefore against the First Amendment to allow the feeling to be interpreted as an intention to cause fear or perform some illegal actions (Hartley, 1).

One of the precedent cases to Texas v. Johnson was the West Virginia Board of Education v. Barrette (1943) in which the judges asserted that failing to salute the flag is permitted under the first amendment. A precedent case in Virginia v. Black is the Watts v. USA (1969). In this case, the court ruled that states are permitted to ban true threats in case the speaker means to communicate an expression that is serious and intent to commit an act of unlawful violence directed to a particular individual or a group of individuals in the society.

Justice Stevens Dissected arguing that the flag is a unique status and a symbol of national unity. According to him, it outweighed symbolic speech concerns, which means that the government could lawfully prohibit flag burning in any state. The dissent to the Virginia v. Black case was written by Justice Thomas J. who argued that the majority made a mistake in interpreting an activity as an expression. His argument was that cross burning if viewed as an act without expression means an activity that brings justifiable fear of violence towards the victims of such activities. His view was that hatred might be expressed although the law does not provide for the induction of terror or the fear of harm in others in the process of expressing such hatred (Hartley, 1).