Here are the stories of some brave individuals, mostly underdogs, and the times in which they lived.
They wanted passionately to express their views -- about corrupt government, civil rights, the Vietnam war, Ronald Reagan -- and the state wanted to shut them down.
Come along for the ride, feel the emotions, and see the full majesty of the First Amendment.
The first two cases are a warm-up for what follows.
MILLS v. ALABAMA (1966) -- A BRAVE NEWSPAPER EDITOR
Election day -- Birmingham, Alabama 1962.
A corrupt major is trying to keep power and suppress dissent. Mills, a newspaper editor, calls him out in an editorial published on election day.
The editorial violates an Alabama law that prohibits "electioneering statements" on election day.
The Alabama Supreme Court says Mills broke the law. (Amazingly, the trial court got it right -- in freaking Birmingham, Alabama in 1962.)
The U.S. Supreme Court holds: The Alabama law violates the First Amendment's guarantees of free speech and press and is invalid.
Justice Black writes:
Whatever differences may exist about interpretations of the First
Amendment, there is practically universal agreement that a major
purpose of that Amendment was to protect the free discussion of
governmental affairs.
O'BRIEN v. U.S. (1968) -- DRAFT CARD BURNING
Not Earl Warren's finest hour.
O'Brien burns his draft card on the steps of the South Boston courthouse, in front of a large and unruly crowd, to protest the draft and the war.
He's convicted of violating a 1965 law passed by congress, which basically prohibits any screwing with a draft card.
Writing for the Court, Warren says what exists here is both protected speech (O'Brien's protest message) and unprotected conduct (destruction of the draft card).
O'Brien goes to jail for the unprotected conduct.
Comment: The Court got it wrong. The burning of the draft card was at once both protected speech and an act in defiance of the law. The two were inseparable. The Court made a mistake in not shielding the whole under the First Amendment.
But that was 1968, when the country seemed to be coming apart. Maybe Earl Warren figured it was time to step back from the precipice.
Warren wrote some great opinions, but he also sold the country down the river several times, principally with issuance of the Warren Report in 1964.
Isn't it great the First Amendment shields my angry writing -- and yours too -- from the government censor?
STREET v. NEW YORK (1969) -- FLAG BURNING
The first flag burning case. Fasten your seat belt.
Street, a black guy living Brooklyn, hears on the radio that James Meredith has been shot by a sniper in Mississippi, so he takes a neatly folded flag, goes out into the street, and burns the flag. Then he explains his action to a nearby crowd.
"They didn't protect him," he said. "If they did that to Meredith, we don't need an American Flag."
Street is convicted of violating a New York law that bans both physical damage to the flag and casting words of contempt upon the flag.
The Supreme Court holds: Because it's unclear whether Street was punished just for his protected speech, his conviction must be reversed under the First Amendment.
The Court dodges the question of whether the act of flag burning itself is protected speech. Twenty years later, as we'll see, the Court addresses the act of burning.
SCHACHT v. U.S. (1970) -- STREET THEATER
This is a fascinating opinion -- one of the great ones by Justice Hugo Black.
As part of a coordinated nationwide anti-war protest, Schacht and two others perform a skit critical of the U.S. Army several times in front of the Houston induction center on the morning of December 4, 1967.
In the skit, Schacht (a civilian) wears an army uniform, in violation of a U.S. law that PERMITS the wearing of an army uniform in a theatrical production, BUT ONLY IF the production does not cast discredit on the U.S. armed forces.
Justice Black first establishes that the skit was a "theatrical production" -- not Broadway to be sure, but a theatrical production nonetheless.
Then Justice Black gets to the part of the law that prohibits casting discredit on the nation's armed forces. He points out the law permits praise of the Vietnam war but not criticism.
Held: The law is unconstitutional, violating the First Amendment. Schacht's conviction is reversed.
What a great decision. God, how I wish Hugo Black were on the High Court today.
SPENCE v. WASHINGTON (1974) -- PEACE SYMBOL AFFIXED TO THE FLAG
Seattle -- May 10, 1970. Nixon has just ordered the invasion of Cambodia. Four students have just been shot dead by the Ohio National Guard on the campus of Kent State University.
Spence neatly affixes some harmless, removable black tape in the shape of a peace symbol to his flag and hangs the flag upside down out of his apartment window.
The cops arrest him, and he's convicted of violating a Washington law that prohibits affixing anything to the American Flag.
Supreme Court holds: Spence did no more than engage in protected speech. The Washington law violates the First Amendment. Conviction reversed.
You can be sure a lot of people at the time were thinking, where are the Nazis when we need them?
TEXAS v. JOHNSON (1989) -- FLAG BURNING
Dallas -- summer of 1984. Republican National Convention. The Repubs are gathered to nominate now-daffy Ronald Reagan for his second term.
A large group of protesters assemble and begin marching through the streets of Dallas, chanting, shouting, and engaging in some minor (but unlawful) mischief, including some spray painting.
The crowd winds up in front of Dallas City Hall, where steps forth Johnson, who did not participate in the march (he must have gotten some really good legal advice).
Johnson unfurls an American Flag, douses it in kerosene, and sets it on fire. The crowd cheers him loudly but does not engage in any lawbreaking.
Some onlookers, who are not part of the protest group, are deeply offended by Johnson's desecration of the flag.
Johnson is tried and convicted of violating a Texas anti-flag-burning law. His conviction goes up to the Supreme Court.
Writing for the Court, Justice Brennan (now quite elderly), points out that burning and burying a tattered U.S. flag is the preferred way of dealing with it. (The remains of the flag Johnson burned, BTW, were gathered up and buried respectfully in a backyard.)
Justice Brennan points out that the Texas law, therefore, really isn't aimed at flag burning per se. Rather, it's aimed exactly at the kind of expressive conduct in which Johnson engaged.
Held: The Texas law violates the First Amendment. Conviction reversed.
Please note who joined Brennan in this opinion: Marshall, Blackmun, Kennedy, and Scalia.
SCALIA? Yes. He's generally been a staunch defender of the First Amendment.
Now let's look at the disssnters: Rehnquist, O'Connor, White, and Stevens.
STEVENS??? I submit that Stevens is not a big fan of the First Amendment. To be fair, he has come out in recent years and said he's changed his mind about flag burning. But clearly, at his core, he has not always cherished free political speech.
In Johnson, we see that a a majority of Justices -- 20 years after the 1960s -- have finally got the courage of their convictions.
SUMMARY
These cases are about individual political speech, which is given the greatest deference under the First Amendment.
But let's be real. There are plenty of people on both the left and the right who would like nothing more than to have government limit your and my First Amendment freedoms.
In my next series of diaries I'll get into corporate political speech.