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Free speech: Westboro church Supreme Court case tests First Amendment

A Supreme Court case challenging the Westboro Baptist Church anti-gay protests will test the limits of free speech, with First Amendment implications for other forms of expression such as Quran burning and racist demonstrations.

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Johnson was charged with desecrating a venerated object in violation of Texas law. He was convicted and sentenced to a year in prison and ordered to pay a $2,000 fine. A state appeals court affirmed his conviction, but the Texas Court of Criminal Appeals overturned it.

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The case went to the US Supreme Court. A controversy that tested the justices like no other, it left the court sharply divided. By a 5-to-4 vote, the high court ruled that Johnson could not be prosecuted for engaging in an act of symbolic speech – burning the American flag.

"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," Justice William Brennan wrote in the majority opinion. "We have not recognized an exception to this principle even where our flag has been involved."

Justice Brennan continued: "The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong."

In an impassioned dissent, Justice John Paul Stevens, usually a Brennan ally on the court, said the case had nothing to do with disagreeable ideas. Johnson engaged in disagreeable conduct that diminished the value of an important national asset, Justice Stevens said.

"The ideas of liberty and equality have been an irresistible force in motivating leaders like ... the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach," wrote Stevens, a Navy veteran of World War II.

"If those ideas are worth fighting for – and our history demonstrates that they are – it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."

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Another important figure in the development of free speech protections in America is Ku Klux Klan leader Clarence Brandenburg. In 1964, he was filmed delivering a speech in full white-robed regalia in the glow of a burning cross during a KKK rally in rural Ohio.

"We're not a revengent [sic] organization," Mr. Brandenburg declared, "but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengence [sic] taken."

Brandenburg was charged with breaking an Ohio law by advocating violence during his speech. He was convicted and sentenced to serve one to 10 years in prison and pay a $1,000 fine.

On appeal, the US Supreme Court reversed his conviction, announcing in a landmark decision that mere advocacy of unlawful action was fully protected by the First Amendment. What wouldn't be protected, the court said, was an intentional effort to incite imminent lawless action, like whipping a crowd into a riotous mob and sending them on a rampage.

That 1969 decision in Brandenburg v. Ohio established a high standard for the protection of free speech. But, by necessity, it leaves unresolved the critical question of precisely where the line falls between unlawful incitement and mere impassioned advocacy.