The American Constitution

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Is burning the American flag protected symbolic expression? Include in your discussion: Street. New York(1969); Spence. Washington(1974); Texas. Johnson(1989)


Over the years, anger has been expressed in a number of ways. Americans have some times expressed their dissatisfaction through the burning of the American flag. While the flag has been a respected symbol of nations, this gesture has raised numerous concerns inclusive of suites in courts to give legal counsel on the matter.

In the case of Spence v Washington, a Seattle resident was prosecuted for the misuse of the American flag. In the case the resident was charged with hanging the flag in the window with a peace symbol on it. In his defense, Spence argues that the gesture was unrelated to the any speech suppression.

This issue remains unresolved with American expressing their dissatisfaction with the government through burning of the American flag. Ideally the over-protection of the flag meant the protection of the interests of some of the members of government. This is in accordance with the conviction of Spence.

The conflict over the burning of the American flag persisted for years without resolve. However through the Texas vs. Johnson suite, the issue was resolved. According to the suite which found the gesture of burning the flag as shear expression of speech, the court ruled against such demonstrations. This landmark ruling was crowned through the passing of the flag protection act of 1989.

In the case of street vs. New York, it emerged that was at stake was the constitutionality of the ban on burning the flag. It was in question whether burning the flag was in contempt of respect for this American national symbol. This was evidenced in the differences in opinion by the different Justices. Ideally the Justices seemed at crossroads over the main issue at stake; the constitutionality of the ban. Justices Warren’s concern brings to the fore this issue, castigating others over the misplacement of the right arguments.

Indeed, the main concern raised through the suites is the constitutionality of the ban and subsequently the freedom of speech inherent with the American constitution. One fact comes out to the fore, the defining of constitutionality is very critical in the determination of legalities within specific spheres.


Compare and contrast the majority and minority opinions in Boy Scouts of Americav. Dale,(2000). Select three issues raised in the opinions and specifically compare them. For example the Scout Oath and Law is viewed quite differently by the majority and minority. Are the Boy Scouts a private or public organization? What is expressive association?


The boy scouts is a public organization and is not intended to make any profits from its dealings. Further, the boy scouts are expected to instill values that are positive within the majority of societies believes. The Boy Scout holds morals as a key component of the association and any deviation from such leads to banishment from the association. Perhaps the definition of the morality is what remains constitutionally defined.

In the case of the Boy Scout of America vs. Dale, it emerges that force is not part of the moral standards that are expected within the association. Subsequent, forcing Dale to be a Boy Scout assistant was inconsistent with the values of the Boy Scout association. While some of the states in the US accept homosexuality, the Boy Scout laws find it as inconsistent with its provisions.

What seems within these suites as at cross roads is the fact that expressive activity seemed to be unclearly defined. Protection of members should not be done just because they are members protected is raping the provisions of the first amendment. The amendment only provides protection in cases where the activities undertaken are impaired.

Ideally the tenets of scouting can not allow the scouts to engage in what can impair them. This is where the opinion of the majority versus the minority clash. While not all the scouts ascribe to these tenets, the second amendment does not allow them to have such values. Ideally, this represents a case of suppressing freedoms.

Though the court found it sufficient tat the boy scouts were talking requisite steps to follow the laid down standards. The taking of the official positions was indeed in line with the stipulated rules; nevertheless, this was in contravention of the freedom of expression. The existence openly of gay activist amongst the assistant Scoutmaster’s seemed to send distinctly disagreeing opinions among the staff. Altogether the court wanted to demonstrate that there was the need to have considered the aspirations of the minority even where democratic ideals calls for consideration of the needs of the majority.

What was the understanding of Framers of the Constitution in protecting free speech? How does this square with the Alien and Sedition Act passed in 1798? (7 years after the Constitution was ratified)

The principle of free movement forbids the American government from forcing people to reject a widely held opinion. This tends to create protection from those who make blunder and pathologies. Ideally the freedom of expressing oneself does diminish the gap that exists between the nation’s citizens and the leaders, and subsequently the monitoring of the later by the former.

James Madison finds fault in the provisions of the second amendment. It is based on this that Madison does object to the concept of the sedition act. Within the provision of this act, individuals who would criticize the officials of government would be victimized. Ultimately, and according to Madison, this was a curtailment of the freedom of speech. He argued that electing officials in government meant making them responsible to the citizens.

            The principle of free speech does require that the government of the day doesn’t censor the speeches that it does disapprove. While the government will want to impose penalties for such, these penalties are ideally unacceptable. The developers of the American constitution have had discontent over the efficacy of the some of the provisions that have been termed as protecting the interests of the commoners. Ideally some of the provisions that prohibit and curtail free speech are meant to protect the government elites from criticism on issues that affect the public.

 The framers of the American constitution inherently referred to herein as framers are amongst other Madison, Jefferson Franklin and Hamilton. Their intent was to protect all Americans, the common man and the political elite alike. In democratic societies, government would not point to the risks that would be bought about by free speech, rather the government should have legislation that are both free and fair to all the citizens.

If the government should restrict speech according to the framers of the American constitution, then it should show sufficient course why. Speech has over the years been used to persuade, arguing that speech will convince citizens against government is therefore a misplaced argument. Ideally the restriction of speech should be accompanied by transcend lawlessness and the fears that the speech should arise. Nevertheless the ultimate consensus is that whatever is said by citizens should have basis and should not be in contravention of other people’s rights and privileges.

Freedom of the Press

World over, the freedom of the press has been at crossroads. While the press has been argued as the custodian of the interests of the majority and the minority, it appears apparent that the leaderships with bad motives will never have support for this important institution of the society. Without the press perhaps most of the evils in society would remain under cover.

The issuance of publication bans is therefore a retardant act and should be discouraged. Whereas this is advocated the there should be a balance with the constitutionally protected rights. Because bans on certain publication seem to certain the freedoms of the press, the publication should be required be responsibly done. The inherent implication here is that the any publication should have sufficient prove and substantiation in any court of law.

If the courts are to make such decision relating to the issuing bans, then the basis should be constitutional and fair in consideration. Depending on the situation the perspectives that exist on closing off through courts through publication bans is meant to frustrate the accused and has the least basis in the American constitution. Nevertheless, because the court has the responsibility of making the ruling it is incumbent upon it to have some sufficient facts on which to base the judgment. Or-else, the blanket curtailment of the press would mean the practice of unfair trial which the constitution doesn’t provide room for.

Prior Restraint

This is the deliberate attempt to ensure that certain publications are not made. Constitutionally, this is the illegal restraint on the speech or the press’ freedom. While this has been transcend from the argument against libel, obvious untruth and slander, provided the publisher can offer basis for the publication this restraint is unconstitutional and unwarranted. Either way, the courts have the responsibility of protecting the Americans from defamation and slander and acts that would otherwise lead to racial, diatribes and such acts as religious epithets.


The freedom of expression has been highly upheld by the American government and judicial system. Nevertheless, any insurrection to any lawful authority and such acts as incitement to resist such lawful authority should be discouraged. This constitutes sedition. In fronting for the protection of these rights the citizens should not misuse the same legal provision illegally.

Actual Malice

There are cases where persons will publish information while they are fully aware that the information is false and has the capability of defaming the subject(s). This is particularly when the information being published is false and has no legal and constitutional basis at all. The acting without any regard for the subject is equated to Actual Malice too. At time publishers will give information without any regard to the truth thereto the statement issued. This would be resultant to acting without the due regard to the set publication standards or shear arrogance. This is indeed unconstitutional and has the least to do with the exercise of the freedoms provided thereto.


Though the press has constitutional mandate of making publications, publishing through television, radio or print media information that is not true and that will harm the character of the subjects is unconstitutional and amounts to libel. Ideally libel constitutes the written form of defamation. Unlike slander and defamation libel has to do with printed matter and it does damage the character of the subject.


What was the understanding of the Framers of the Constitution in protecting freedom of the press? What role did Nearv. Minnesota(1931) have in extending freedom of the press?

The framers of the American constitution did endear that the press would be fully independent and would be exercised constitutionally without infringing into the rights of others. How the taste of time seems to have made some of the citizens misuse the freedom without considering the other parties involved in the releases. This was evidenced in Near Vs. Minnesota in 1931.

Cutting through the details of the requisite procedure, the effect and the operation of the statute does require that sufficient substance is provided for the publication. The publication of defamatory and scandalous materials, and unless the publisher is able to provide sufficient evidence should not be condoned and should be charged accordingly in a court of law. Altogether, what is required is evidence for any person to undertake publication.