About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most