TEXTO 1

Freedom of Speech

Freedom of speech—the right to express opinions without government

restraint—is a democratic ideal that dates back to ancient Greece. In
the United States, the First Amendment guarantees free speech,
though the United States, like all modern democracies, places limits on
this freedom. In a series of landmark cases, the U.S. Supreme Court
over the years has helped to define what types of speech are—and
aren’t—protected under U.S. law.
The ancient Greeks pioneered free speech as a democratic principle.
The ancient Greek word “parrhesia” means “free speech,” or “to speak
candidly.” The term first appeared in Greek literature around the end of
the fifth century B.C.
During the classical period, parrhesia became a fundamental part of
the democracy of Athens. Leaders, philosophers, playwrights and
everyday Athenians were free to openly discuss politics and religion
and to criticize the government in some settings.
First Amendment
In the United States, the First Amendment protects freedom of speech.
The First Amendment was adopted on December 15, 1791 as part of
the Bill of Rights—the first ten amendments to the United
States Constitution. The Bill of Rights provides constitutional protection
for certain individual liberties, including freedoms of speech, assembly
and worship.
The First Amendment doesn’t specify what exactly is meant by
freedom of speech. Defining what types of speech should and
shouldn’t be protected by law has fallen largely to the courts.
In general, the First Amendment guarantees the right to express ideas
and information. On a basic level, it means that people can express an
opinion (even an unpopular or unsavory one) without fear of
government censorship.
It protects all forms of communication, from speeches to art and other
media.
Flag Burning
While freedom of speech pertains mostly to the spoken or written word,
it also protects some forms of symbolic speech. Symbolic speech is an
action that expresses an idea.
Flag burning is an example of symbolic speech that is protected under
the First Amendment. Gregory Lee Johnson, a youth communist,
burned a flag during the 1984 Republican National Convention in
Dallas, Texas to protest the Reagan administration.
The U.S. Supreme Court, in 1990, reversed a Texas court’s conviction
that Johnson broke the law by desecrating the flag. Texas v.
Johnson invalidated statutes in Texas and 47 other states prohibiting
flag burning.

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

 Obscene material such as child pornography

 Plagiarism of copyrighted material
 Defamation (libel and slander)
 True threats

Speech inciting illegal actions or soliciting others to commit crimes aren’t

protected under the First Amendment, either.

The Supreme Court decided a series of cases in 1919 that helped to define the
limitations of free speech. Congress passed the Espionage Act of 1917, shortly
after the United States entered into World War I. The law prohibited interference
in military operations or recruitment.

Socialist Party activist Charles Schenck was arrested under the Espionage Act
after he distributed fliers urging young men to dodge the draft. The Supreme
Court upheld his conviction by creating the “clear and present danger” standard,
explaining when the government is allowed to limit free speech. In this case,
they viewed draft resistant as dangerous to national security.

American labor leader and Socialist Party activist Eugene Debs also was
arrested under the Espionage Act after giving a speech in 1918 encouraging
others not to join the military. Debs argued that he was exercising his right to
free speech and that the Espionage Act of 1917 was unconstitutional. In Debs
v. United States the U.S. Supreme Court upheld the constitutionality of the
Espionage Act.

Freedom of Expression

The Supreme Court has interpreted artistic freedom broadly as a form of free
speech.

In most cases, freedom of expression may be restricted only if it will cause

direct and imminent harm. Shouting “fire!” in a crowded theater and causing a
stampede would be an example of direct and imminent harm.
In deciding cases involving artistic freedom of expression the Supreme Court
leans on a principle called “content neutrality.” Content neutrality means the
government can’t censor or restrict expression just because some segment of
the population finds the content offensive.

Free Speech in Schools

In 1965, students at a public high school in Des Moines, Iowa, organized a

silent protest against the Vietnam War by wearing black armbands to protest
the fighting. The students were suspended from school. The principal argued
that the armbands were a distraction and could possibly lead to danger for the
students.

The Supreme Court didn’t bite—they ruled in favor of the students’ right to wear
the armbands as a form of free speech in Tinker v. Des Moines Independent
School District. The case set the standard for free speech in schools. However,
First Amendment rights typically don’t apply in private schools.

 TEXTO 2:

Flag Burning – An act of free speech or a crime

“Nobody should be allowed to burn the American flag — if they do, there
must be consequences — perhaps a loss of citizenship or year in jail!” –
Donald Trump.
President Trump has made up his mind when it comes to flag burning. The
United States of America is still debating this controversial issue. The first
mentions of demeaning a national symbol date back to 1907. In the case of
Halter v. Nebraska. The court stated that a business cannot sell beer with flag
labels on the bottles. In 1968, Federal Flag Desecration Law was passed
making acts like publicly mutilating, defacing, defiling, burning or trampling
of the American flag as illegal, which was then later revoked. In 1974, in
Spence v. Washington, the court stated that a person cannot be convicted for
sticking a peace sign on an American Flag implying such an act to be
protected expression under the First Amendment.
The first sparks flew when in 1984, Gregory Lee Johnson broke state law by
burning a flag at the Republican Convention in Dallas. Johnson was fined and
sentenced to one year in prison. On June 21, 1989, United States Supreme
Court voted 5-4 in favor of Johnson considering his actions as symbolic
speech.
Justice Antonin Scalia, later, expressed his views in a public event.
 “If it were up to me, I would put in jail every sandal-wearing, scruffy-
bearded weirdo who burns the American flag,” Scalia said at a November
2015 event in Philadelphia. “But I am not king.”
President Donald Trump’s proposal of a penalty which includes jail time or
loss of citizenship for burning the flag received heavy criticism. Steve
Vladeck, a renowned Professor at the University of Texas Law School, stated
that Trump’s idea that citizens possibly be expatriated as a discipline is not a
plausible solution.
“In addition to ignoring the Supreme Court’s clear teaching that flag burning
is constitutionally protected speech, Mr. Trump’s tweet also casually suggests
that citizens should lose their citizenship as a ‘penalty’ for such
acts,” Vladeck said. “Even if flag burning weren’t protected, it would still be
unconstitutional to deprive someone of their citizenship without some
voluntary act on their part to renounce their allegiance to the United States
or pledge fealty to a foreign sovereign.”
There is a clear distinction between authentic and forced patriotism. Flag
burning and desecration is undoubtedly offensive, but it is political in nature.
The best manner to fight a political expression is to express disapproval rather
than banning the expression itself. If we allow Congress to decide what is
acceptable under the right of free speech, it defies the purpose of the
constitution and the First Amendment. Even the courts agree when it comes to
the expression of free speech. Every citizen can express their anguish or pain
through an act of free expression until it is not hurting someone physically or
damaging tangible property.
However, certain acts are so condemnable in nature that there is no other way
than to altogether ban the activity. To quote such an example – burning of
Quran is forbidden as it can lead to hurtful sentiments and disrupt national
peace.  Similarly, the American flag is a holy symbol representing what we as
a country stand for. If we allow burning of our national symbols, it can pave a
pathway of hatred and a blatant rejection of government institutions. Our
soldiers have sacrificed their lives and are still fighting as we speak to protect
the freedom and integrity which our flag represents. Flag burning shatters the
morale of armed forces for whom the nation is not just a piece of land but a
sacred place and flag, not a piece of cloth but a holy symbol representing their
belief.
Burning a flag is a mindset and not just a problem. We need to find a better
way to deal with such a complex issue. What do you think?
Should it be illegal to burn the American flag?

TEXTO 3  https://www.hsu.edu/uploads/pages/1998-9afflag_burning.pdf
Flag Burning
Joi Straight
Honors College

Faculty Sponsor: Marck L. Beggs

 Assistant Professor of English

Abstract
Several times in our nation's history, Congress has introduced a bill that would provide for
banning flag desecration. Each time, however, the Supreme Court ruled that this act was
protected by the First Amendment freedom of speech rights. The debate over this topic
continues, with both sides arguing for "the good of the country."

In a 1943 landmark Supreme Court case, Justice Robert H. Jackson wrote, "The freedom to
differ is not limited to things that do not matter much" (qtd. in Jacoby el al. 20). This concept
can be applied in the debate on whether to amend the Constitution to ban flag burning. When
one considers the Constitution and the symbolic meaning of the United States flag, he or she
can see that this is one issue that does mean a great deal to the American public. The freedom
to differ is of extreme importance in this case, which can be seen as one reviews the reasoning
for committing such an act and what it might mean beyond the desecration of a revered
national symbol.

The burning of an American flag is not necessarily anti-American or unpatriotic. Sometimes,

the greatness and majesty of the flag is better portrayed in the powerful political and societal
statement of destroying it. This act can convey the feeling of the American people that their
government is not the body it should be or that it is not doing the will of the people. This is
probably one of the most emotional actions they can take to get the government's attention.
Some of these protestors may even love the flag as much as those who are for banning flag
burning, but the burners want to emphasize the seriousness of their complaint. The act of
burning a flag may be the people's way of telling the government that it is corrupting their
country, one they hold dear, and they would rather burn the flag than participate in some
violent act to express their discontent with the government.

Many people are also concerned with the idea that burning flags somehow dishonors those
who fought for this country in the wars. Representative Henry Hyde, chairman of the House
Judiciary Committee, said, "Too many men have marched behind the flag, too many have
returned in a wooden box with the flag as their only blanket... not to honor and revere that
flag" (qtd. in Feder 114). However, these flags were also used to honor these mens' lives by
protesting some of the very wars they died in; some flag burners so valued their fellow
countrymen's lives that they burned the nation's most visible symbol. During the 1960s, those
protesting involvement in the Vietnam War burned thousands of flags and destroyed others in
several different ways (Relin 18). This was to show that they did not support the war, not that
they did not respect those who fought in it for the country they were trying to "better." The
flag burners also protested the morality of a war in which the United States destroyed land,
blew up homes of innocent people, and burned thousands of people to death. "That, more
than anything else, desecrates our flag, making it one of the most distrusted and feared
banners around the world. How agitated we become when someone insults our flag, but every
day in a hundred different ways we defile it, trample its spirit, drag through the dirt the
principles it represents" ("Desecrating" 772). 

Some opponents of flag burning also try to equate this issue with that of violent crimes. They
say that if America allows flags to be burned, then the same could go for the Constitution and
the White House (Moral 2). William H. Rehnquist, Chief Justice of the United States Supreme
Court, said, "One of the highest purposes of a democratic society is to legislate against conduct
that is regarded as evil and profoundly offensive to the majority of the peopleC whether it be
murder,

embezzlement, pollution, or flag burning" (qtd. in Speaking 2). First, it is legal for people to
burn copies of the Constitution, but it would not be acceptable to burn the original
Constitution, just as it would be unacceptable to burn the real Old Glory. This is because
preservation of our history and of historical documents is extremely important; it is not
necessarily because these are essential for our government but because they are our history,
not replications of it. These artifacts do belong to the nation. Also, the difference between the
actions Rehnquist mentions and flag burning is that flag burning does not injure or cause harm
to anyone, nor does it destroy someone else's property, as long as the said flag is not stolen.
Thus, burning a flag is not a crime like those the Chief Justice mentioned, and it most certainly
is not a violent crime.

Perhaps the biggest problem people have with flag burning is they see it as a direct attack on
what the country stands for, what it was built on those many years ago; they see the flag as
the definition of America. Senator Feingold of Wisconsin said, "I think the key to this whole
issue is that we are not a nation of symbols we are a nation of principles. Principles of
freedom, of opportunity, and liberty. These are the principles that frame our history, and these
are the principles... that define our great Nation" (1). Our flag is not what this country is built
on; America was founded on the idea of freedom, not on reverence for a piece of cloth. In fact,
according to Cal Thomas, those in favor of banning flag burning "have placed the American flag
in a category and context that is idolatrous. Idolatry is defined as "the worship of a physical
object as a god; immoderate attachment or devotion to something" (110). Even George
Bushnell, Jr., World War II and Korean War veteran as well as a former president of the
American Bar Association, said, "I did not serve my country in order to protect that physical
symbol of our great country; I fought to protect the ideals it represents, including the right of
free speech especially wrong-headed, illconsidered, offensive political speech" (1). 

Advocates of allowing flag burning also suggest that the flag has personal symbolic meanings
that are varied and more powerful than the national one. They also point out that people love
the flag because of these personal ties, not because the Constitution mandates it. "Allegiance
that is voluntary is something beyond price. But allegiance extracted by statute or, worse yet,
by constitutional fiat wouldn't be worth the paper the amendment was drafted on. It is the
very

fact that the flag is voluntarily honored that makes it a great and powerful symbol" (qtd. in
Feingold 2). The flag would cease to be a symbol of personal liberty and will instead become a
symbol of the freedom the American people lost. In the case of West Virginia State Board of
Education v. Barnette, Justice Robert Jackson stated, "Those who begin coercive elimination of
dissent soon find themselves eliminating dissenters. Compulsory unification of opinion
achieves only the unanimity of the graveyard... the First Amendment to our Constitution was
designed to avoid these ends by avoiding these beginnings" (qtd. in "Rehnquist" 47).

Another argument opponents of flag burning make is that this act is not provided for in the
First

Amendment since it is not speech. Major General Patrick H. Brady, the Citizen's Flag Alliance
Board Chairman states, "Burning a flag is not speech, it is conduct. You can't burn a flag with
your tongue. It is an insult to the intelligence of the vast majority of common sense Americans
to call flag burning speech" (1). Chief Justice William Rehnquist, in his dissenting opinion in the
U.S. v. Eichman flag burning case, said, "Flag burning is the equivalent of an inarticulate grunt
or roar," denying that flag burning communicates anything at all. However, one can make the
point that whatever flag flying means, then flag burning means the opposite (Kinsley 4).

Flag burning is no less a part of the First Amendment rights than nonverbal communication is.
In fact, burning a flag is nonverbal communication; there is definitely a message being sent and
one being received. The United States v. O'Brien Supreme Court case stated, "conduct can be
labeled 'speech' whenever the person engaging in the conduct intends thereby to express an
idea" (qtd. in "Flag" 3).

Furthermore, opponents of flag burning make the case that several forms of speech are
already prohibited by law. George Bush stated, "The law books are full of restrictions on
speech," and Oliver Wendell Holmes backed him up by pointing out that it is not permissible to
yell fire in a crowded movie theater (qtd. in Isaacson 17). This fact is irrelevant since these
forms of prohibited speech are illegal because they have the potential to cause harm. The
Supreme Court has allowed only for flag burning as an expression of dissent; it
specifically excluded protection in cases where vandalism is involved or in which the
act incites violence (Wall 643). In effect, this says that only flag burning which is
symbolic political speech may be protected. 

Also, the Constitution, not necessarily the First Amendment, does provide for peaceful
assembly which already allows the Ku Klux Klan and Neo Nazis to gather together. When they
wear paraphernalia which associates them with such a group, they are making an obvious
statement. However, these people are not barred from meeting, even though many people
may find their gatherings distasteful. As long as a demonstration or protest is peaceful, then
why is it not Constitutional? Perhaps what those who support banning flag burning really want
is for the government to outlaw anything they find offensive; this could encompass a plethora
of issues. However, this is not what the First Amendment is supposed to do, "nor can [it]
ensure that free expression will always comport with the views of a majority of the American
public or the American Government" (Feingold 4). In his majority opinion in the Supreme Court
decision in Texas v. Johnson, Justice William J. Brennan said, "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" (qtd. in Wall
643). Brennan went on to conclude, "Punishing desecration of the flag dilutes the very
freedoms that make this emblem so revered" (qtd. in Relin 18).

Another issue in this debate is whether approving an amendment, to the Constitution, which
bans flag burning would be amending the First Amendment. According to the 1989 United
States Supreme Court verdict in the case of Texas v. Johnson, adding this amendment would
put stipulations on the First Amendment since the Court found that "burning of the United
States Flag is protected under the First Amendment to the Constitution" (Court 1). Passing an
amendment to ban flag burning would overrule a Supreme Court decision. This in and of itself
may seem close to being unconstitutional since it is the courts' expressed power to interpret
the Constitution, not the legislature's. However, a provision exists in Article III, Section 2, of the
Constitution, which states, "In all the other cases before mentioned the Court shall have
appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations
as the Congress shall make" (qtd. in "Burning" 12). This provision is seldom used, and is not
seriously considered as an option since the Congress would have to be sure the majority of the
public supported such an action.

Of course, knowing if the majority of the people really do support this idea is harder than one
might think. Those that favor the ban claim that over 60 percent of citizens would support this
amendment. However, when people were asked how they viewed the amendment once they
knew it would be "the first in our nation's history to restrict freedom of speech and freedom of
political protest, the results were dramatically differentC a majority of Americans opposed
such an amendment" (Bushnell 1).

As with many political issues, the slippery slope fallacy comes into play. In this debate, those in
favor of allowing flag burning convey the idea that if the amendment to ban desecration of the
flag is passed, then no replica, portion, or component of the flag will be allowed on clothing,
accessories, advertisements, napkins, cakes, etc. This would mean that a person could not
even have a red and blue handkerchief with white stars on it because that would be a
desecration of the flag. This concern does have some basis. The American Legion Flag
Education and Etiquette: Flag Code states, "The flag should never be used for advertising
purposes in any manner whatsoever. It should not be embroidered on such articles as cushions
or handkerchiefs and the like, printed or otherwise impressed on paper napkin or boxes or
anything that is designed for temporary use and discard." It also states, "The flag represents a
living country and is itself considered a living thing" (6). However, the American flag was
painted on the atomic bomb dropped on Hiroshima (Garbus 370). So, the interpretation for
what could and could not be "desecrated" would be a vital aspect of the amendment.

This issue is one that will probably continue to reappear in debates of all kinds. However, as
Feingold said, "This Nation was born of dissent and, contrary to the view that it weakens our
democracy, this Nation stands today as the leader of the free world because we tolerate those
varying forms of dissent, not because we persecute them" (5). Justice Anthony Kennedy said,
"It is poignant and fundamental that the flag protects even those who hold it in contempt"
(qtd. in Relin 17).

Excepciones a la primera enmienda

Son varias las excepciones que existen a la libertad de expresión, adoptadas tras
múltiples fallos del Tribunal Supremo en los casos que han llegado hasta sus salas a lo
largo de las décadas.

Incitación a una acción ilegal inminente. El profesor de Derecho Ian Haney-López,

autor de varios libros sobre el racismo y la sociedad contemporánea, pone un ejemplo:
“Un ciudadano es libre de expresar su opinión en una esquina, incluso si se trata de
comentarios despectivos hacia un grupo étnico, religioso o social específico, pero no
puede decir ‘disparemos a toda esa gente ahora’; en ese caso, la primera enmienda no lo
ampara”.

Tampoco están amparadas las declaraciones que “tiendan a incitar una ruptura
inmediata de la paz”, o por ejemplo una palabra “personalmente abusiva que, dicha a un
ciudadano ordinario, es probable que genere una reacción violenta de la otra parte”.
Falso testimonio. Esta categoría engloba las leyes sobre libelos, difamación y calumnia.
Hay que tener una buena razón para castigar unas declaraciones, precisa el profesor
Robert Cole. “Si le digo a Ud. que el cuadro que le voy a vender es un Picasso pero es
falso, esas palabras mías le causan un daño importante por todo el dinero que va a
gastar”.

Fuente de la imagen, AP

Pie de foto,
La jurisprudencia sobre libertad de expresión emana principalmente de los fallos del
Tribunal Supremo.

Los falsos testimonios pueden dar lugar a demandas civiles o penales, dependiendo de
la gravedad y la intención de quien los emite.

Obscenidad. De acuerdo al llamado test de Miller –una herramienta del Tribunal

Supremo para medir si una palabra o declaración es obscena-, la libertad de expresión
no tiene cabida cuando el discurso llama al interés lascivo o “refleja o describe de forma
claramente ofensiva, una conducta sexual definida por la ley estatal aplicable” y “el
trabajo, tomado como un todo, carece de valor literario, artístico, político o científico
serio”. Algunos otros componentes de esta regla pueden permitir la posesión privada de
materiales obscenos en el propio hogar.
Pornografía infantil. Se distingue de la exclusión por obscenidad en algunos aspectos: es
más específico respecto a lo que engloba la excepción. En segundo lugar, es irrelevante
que cualquier parte de lo expresado encaje o no en el test de Miller, si está clasificado
como pornografía infantil no está amparado por la primera enmienda. La regla establece
que no hay protección constitucional si “visualmente se refleja a niños menores
realizando actos sexuales o exhibiendo sus genitales de forma indecente”.
Declaraciones que sin intención, a sabiendas o de forma simplemente temeraria inflijan
una angustia emocional severa.
Declaraciones o testimonios que pongan en peligro la seguridad nacional del país.
Publicidad falsa o engañosa.