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44 U. Miami L. Rev. 1033 (1989-1990)
Flag Burning Yes, Loud Music No: What's the Catch

handle is hein.journals/umialr44 and id is 1045 raw text is: COMMENTS Flag Burning Yes, Loud Music No: What's the Catch? I. INTRODUCTION ........................................................ 1033 II. PERSPECTIVE ............................................................ 1037 A. Background on Flag Desecration ..................................... 1037 B. The O'Brien Test and the Clark Test ................................. 1046 III. THE FLAG BURNING CASE AND THE PARK CONCERT CASE ................ 1051 A. The Flag Burning Case: Texas v. Johnson ......................... 1051 B. The Park Concert Case: Ward v. Rock Against Racism ................ 1053 C. Substantive Similarities Between the Two Cases ...................... 1054 IV. CRIQUE OF THE Two CASES .......................................... 1060 A. Achieving Consistent Results ........................................ 1060 1. PROTECT THE SPEAKER .......................................... 1060 2. SILENCE THE SPEAKER .......................................... 1066 B. M anipulating the Tests ............................................. 1069 V. CONCLUSION ............................................................ 1072 I. INTRODUCTION The first amendment's rich tradition' reflects an unresolved state of tension, inherent in all societies, between individual freedom and collective goals.2 Although worded in unconditional terms,3 the first amendment does not guarantee absolute freedom of speech.4 Often, 1. For an enlightening survey of this tradition, see H. KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA (J. Kalven ed. 1988). 2. Alternatively, individual freedom might be characterized as a collective goal in the sense that all members of a society may want individuals to be free. This objective meets no resistance as long as an individual's exercise of his freedoms does not collide with the society's other commonly held values. It is precisely those instances of conflict, however, that make up the rich case history of the first amendment. 3. The first amendment reads in part: Congress shall make no law ... abridging the freedom of speech .... U.S. CONST. amend. I. 4. A. Cox, FREEDOM OF EXPRESSION 4 (1981). Even Justice Hugo Black, widely regarded as the champion of an absolute interpretation of the first amendment, acknowledged some level of limitation by distinguishing speech and conduct: The First Amendment, I think, protects speech, writings, and expression of views in any manner in which they can be legitimately and validly communicated. But I have never believed that it gives any person or group of persons the constitutional right to go wherever they want, whenever they please, without regard to the rights of private or public property or to state law. Brown v. Louisiana, 383 U.S. 131, 166 (1966) (Black, J., dissenting). For additional insight into Justice Black's views on the first amendment, see JUSTICE HUGO BLACK AND THE FIRST 1033

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