1. Texas v. johnson (1989) Snyder v. phelps (2011)
Protest That Offends
Texas v. johnson (1989)
Snyder v. phelps (2011)

2. In the landmark case of Cohen v. California (1971)
The Supreme Court upheld the rights of protesters to present their views in ways that were provocative, attention-grabbing, shocking and offensive. Subsequent decades would bring additional speakers choosing to protest in even more controversial ways.

3. Gregory Johnson burned an American flag at the1984 Republican Convention in Dallas to protest the Reagan Administration’s policies.

4. A jury found him guilty. The trial court sentenced Johnson to one year in prison and ordered him to pay a fine of $2,000.
Photo: David Leeson/Image Works
Johnson was arrested for violating a Texas law against desecrating a state or national flag.

5. Johnson argued in his appeal
Burning the flag to show his opposition to government policies was political speech protected by the First Amendment.

6. The highest court in Texas agreed with Johnson
Although Johnson was choosing to be provocative, his political expression is protected. The court stated, “The right to differ is the centerpiece of our First Amendment freedom.”

7. The Supreme Court agreed to hear the case
The issue the Supreme Court had to consider in Texas v. Johnson was whether burning the flag as a political protest was “speech” protected by the First Amendment.

8. Four members of the Court firmly believed that flag burning was protected. As Justice Brennan wrote,
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

9. Four members of the Court firmly believed that flag burning was unprotected. As Justice Stevens wrote,
“If (liberty and equality) are worth fighting for -- and our history demonstrates that they are -- it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.”

10. Justice Anthony Kennedy
With the Court evenly divided, the decision would come down to one member.
Justice Anthony Kennedy

11. Kennedy’s position was complex
He believed on a personal level that burning the flag was offensive
Yet, he believed that the Constitution protected speech that was offensive

12. Kennedy wrote a separate opinion to express the challenge of choosing between his personal and professional views.
“The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”

13. So I agree with the Court that he must go free.”
“But whether or not (Johnson) could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution.
So I agree with the Court that he must go free.”

14. Kennedy’s choice meant the Court would rule to protect flag burning
Do you respect Kennedy’s decision to place the law above his own personal feelings?
Do you believe the Supreme Court made the correct decision in this case?

15. Twenty years later, another offensive protest prompted another decision by the Supreme Court
The Westboro Baptist church believes that the tolerance for sin in the United states has brought god’s wrath upon our country

16. Members of the Church regularly stage protests
Their preferred method is to present its ideas in shocking, attention- grabbing and controversial ways

17. One of their favorite targets of protest: funerals for fallen American soldiers

18. They believe that God is punishing the United States for its sins by killing its soldiers

19. In 2006, members of the Westboro Baptist Church picketed the funeral of Marine Lance Corporal Matthew Snyder.

20. Snyder’s father filed suit against the Church
Albert Snyder’s Claim: the protest was the intentional infliction of emotional distress

21. The jury returned a verdict in favor of Mr
The jury returned a verdict in favor of Mr. Snyder and awarded him over $10 million in damages.

22. Fred Phelps, the founder of Westboro Baptist Church, appealed the jury’s verdict
His argument: the church was being punished for exercising its first amendment right to speak out on important issues

23. Before we talk about the decision of the United States Supreme Court, you be the judge: Do you believe that the judgment against the Westboro Baptist Church constituted a violation of the First Amendment’s Freedom of Speech?

24. The Supreme Court ruled 8-1 that the First Amendment protected the right of members of the Westboro Baptist Church to protest at Snyder’s funeral

25. Explaining the decision of the Court, Chief Justice Roberts wrote:

26. “Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to special protection under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.”

27. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” citing Texas v. Johnson.

28. One judge dissented, with great intensity:
Samuel Alito

29. “Respondents’ outrageous conduct caused petitioner great injury and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered…”

30. “…In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.” Do you agree with Alito?

31. These cases are difficult because they involve things we would never do ourselves.

32. The Court challenges us to ask not, “Would I do this,” but instead, “Will I allow someone else to do this?”