First Amendment

Retired Justice Stevens Still Believes Flag Burning Isn’t Protected Speech


Retired Justice John Paul Stevens said Friday that he still opposes the 1989 Supreme Court decision that protected flag burning under the First Amendment.

Stevens dissented in Johnson v. Texas, and he apparently did not change his thinking over the years. Speaking Friday at a swearing-in ceremony for new Nevada lawyers, Stevens said the five justices in the majority were “judicial activists,” the Las Vegas Review-Journal reports.

Stevens said the flag is an important symbol of liberty that merits special protection, the story says.

Stevens said yelling fire in a crowded theater isn’t protected speech because of the harm it could cause, and the flag burning and chanting at issue in Johnson v. Texas could also have incited violence.

Protesters in the case burned the flag outside the Republican National Convention as they chanted, “America, the red, white and blue, we spit on you.”

Prior coverage:

The Atlantic: “When Justice Stevens Failed the First Amendment”

ABAJournal.com: “Kagan May Have Agreed with Conservative Majority in Citizens United”

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