Lightning Case Module #001 The American Flag and The First Amendment Dr. Brad Burenheide Kansas State University

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Lightning Case Module #001

The American Flag and The First Amendment

Dr. Brad Burenheide
Kansas State University

College of Education

For Teachers: Overview of Lightning Case Module 3
Introduction to the Controversy 7
The Cases 8
Street v. New York (1969)
Spence v. Washington (1974)
Texas v. Johnson (1989)
United States v. Eichman (1990)
For Teachers: More About the Cases (decisions and more) 10
Final Assessment: Create a Law About Flag Burning 11
Bibliography 12

For Teachers: Overview of Lightning Case Model

Under the ruling levied in Marbury v. Madison, the Supreme Court became the institution in the American legal system that serves as the ultimate arbiter of issues of constitutional law. In the opinion, Justice John Marshal noted that “the judicial power of the United states is extended to all cases arising under the Constitution…It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution, itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have the rank (Marbury v. Madison, 1803).”

Under this system of judicial review, it becomes extremely important for students to understand the rights contained with the Constitution and the subsequent Bill of Rights as the Constitution is the ultimate law of the United States. As precedents developed, the scope of the rights of citizens has evolved over time. Thus, it becomes important for citizens to follow this evolution and how the courts currently measure these rights.

As Vontz and Leming noted, the use of Supreme Court cases lend themselves well to certain methods (Vontz & Leming, 2003). But, in this specific case, it is important to realize that the method must be integrated with the content. Vontz and Lemming further suggest civics educators who utilize active and participatory strategies, analyze documents and issues, teach with relevant topics, and teach civics content relevant to democratic citizenship can best motivate students to acquire knowledge of citizenship. One of the means of doing this is through the analysis of Supreme Court cases.

The case study method of court decisions can engage students in gaining key knowledge through the analysis of important cases (McDonnell, 2002; Long, 1994). Vontz and Leming denote however that the understanding of the “bigger topics” of citizenship can be collected from the study of Supreme Court cases than the law students analyzing cases for method and specific topics of study (Vontz & Leming, 2003). These cases can allow students to investigate facts, issues, arguments, context, civic principles, and higher order thinking skills (Knapp, 1993; Leming, 1991).

While there are common strategies to dissect cases of the Supreme Court, many of them can be heavily involved and use up a large amount of time in the classroom. Hanna and Dettmer (2004) encourage the teacher when designing assessments to maintain a balance between reliability, authenticity, and economy. Reliability would be accuracy of the measurement. Authenticity deals with the real-world application of knowledge to encourage transfer of learning. Economy deals with the use of time, effort, and energy in administering the assessment. Where economy focuses on the great “enemy” of the teacher—time—the teacher must consider if the strategy is the optimal and most appropriate use of time. In their article encouraging the use of Supreme Court cases, Vontz and Leming (2003) called for the use of Socratic seminars and moot court cases to effectively analyze the thinking of the court, the institution of the case in an historical context, and by taking an active role in the participating of the activity, becoming content experts of the case. But is this the best use of time in the classroom? Does the depth of content in this instance supersede the coverage of breadth? This study intends to analyze this question by employing a strategy that employs a significant quantity of cases without sacrificing the apparent quality of learning.

Description of the Model

The “Lightning Case” method discussed in this study is rooted in a sound literature base of experiential learning. Kolb (1984) and Kolb and Lewis (1986) provide a model for experiential learning or having students actively engaged in testing explanatory ideas created by the student. Mukhamedyarova (2005) explored the idea of interactive learning and evaluated five strategies commonly used. O’Brien (2003) discussed a model for students to engage in historical prediction making. Finally, Hess (2002) and Parker (2003) illuminated the nature of controversial deliberation in the classroom and provided guidelines for teachers to follow.

Through the sources cited above, a model was constructed that causes students to be actively engaged in the analysis of cases, make predictions based upon their knowledge of the Constitution, and discuss with fellow students, albeit briefly, about their decisions and rationale. Figure 1 provides a visual overview of the model.
Figure 1: An Overview of the “Lightning Case” Model

The model provides students with the opportunity to utilize several cases to develop their own conceptualization of the boundaries of liberty within society and in the “eyes of the law.” The teacher provides a brief overview of the rights enumerated in the Constitution based upon the specific concept that will be addressed. After this introduction, several cases are presented to the student in a written or oral format with a short synopsis of the key facts of illustrative Supreme Court cases. Pending on the teacher’s preference, students may be given the opportunity to deliberate with their classmates, or they will create their own decision of the case. After the court’s actual decisions are shared with the students with brief rationale for their decision, students conceptualize the boundary of the right or concept discussed in the “Lightning Case” session.

Introduction to the Controversy
“Old Glory.” The United States Flag has been a symbol of this country since its initial adoption in 1777 by the Continental Congress. It has undergone a myriad of changes in its evolution as the country grew. As time grew on however, some people began to use the flag as a means to advertise products or as a means to express contempt for the political development of the country. In response, many of the states created laws prohibiting “flag desecration.”
The question arose then, where is the balance between protecting a valued symbol of our country and the role of political protest against the actions of government? Could the flag be used and/or desecrated in protest against the country? Several court cases grew from these questions that have set policy in place as to what can be done with the American flag in protesting the country. Here is your opportunity to explore these questions.
In this module, you will explore four cases that have set the current case precedents for the Flag Burning controversy. You will read a short synopsis of the case and based on the facts given, provide their opinion of the case. The teacher will then inform you if it was correct or not. Continue looking at the cases and see if you can determine what the bounds of the case are.
The Cases

Street v. New York (1969)
Overview of the Case
After hearing a news report detailing the attempted murder of civil rights activist James Meredith, the defendant, Sidney Street, took an American flag and in a public venue burned it. Upon being questioned by police, he stated: “Yes; that is my flag, I burned it. If they let that happen to Meredith, we don’t need an American flag.” He was arrested and convicted of a New York state law that made it a crime to publicly “mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act” any flag of the United States. He was tried in a New York court and found guilty. The conviction was upheld in an intermediate appellate court as well as the US Court of Appeals. The United States Supreme Court heard the case.
Is the New York law used to convict Street constitutional?

Spence v. Washington (1974)
Overview of the Case
In May 1970, a college student named Spence hung in his apartment window a United States flag that he had placed the peace symbol upon out of removable black tape. The State of Washington had in place an improper use statute forbidding the presentation of a flag altered with figures, symbols, or other materials. He was tried in a jury trial and was convicted with a 10-day suspended sentence and a $75 fine. The case was later appealed by Spence.
Did the action of Spence form a presentation of expression and communication protected by the First Amendment?

Texas v. Johnson (1989)
Overview of the Case
The year was 1984. To protest the current political situation in America, Gregory Lee Johnson burned an American flag in protest in front of the Dallas City Hall. Johnson was tried under a state law outlawing flag desecration. He was convicted and sentenced to one year in jail, and fined $2000. The Texas Court of Appeals overturned the conviction. The United States Supreme Court then heard the case.
Is the desecration of the American flag a form of protected speech?

United States v. Eichman (1990)
Overview of the Case
In the aftermath of the Texas v. Johnson case, the United States Congress passed the Flag Protection Act. This Act made it a crime to destroy an American flag or any likeness thereof except for the proper disposal of a worn or soiled flag. In short order, several cases arose from this Act, including the Eichman and Haggerty cases that were tried together by the Supreme Court. In US v. Eichman, Eichman burned a flag on the steps of the US Capitol in protest of government action. In US v. Haggerty, Haggerty burned a flag in Seattle in protest of the Flag Protection Act.
Did the Flag Protection Act violate the First Amendment protection of expression?

For Teachers: More About the Cases

Street v. New York (1969)
In a 5-4 ruling, the court ruled that the law was in part unconstitutional and thusly overturned the conviction. The focus of the ruling was the conviction of individuals on the basis of “words” against the American flag is in direct violation of the First Amendment. Interestingly enough, the court stated the prosecution failed to delineate whether or not Street’s words or actions were in violation of the law. Because of this, the Court stated it was unable to rule on the constitutionality of the burning of the flag…a question to be tackled later.
Spence v. Washington (1974)
In a 6-3 ruling, the Court ruled that the actions of Spence are protected by the First Amendment. His actions were seen as a genuine expression of political opinion.
Texas v. Johnson (1989)
In a 5-4 ruling, the court held that the burning of a flag was protected under the First Amendment. Specifically, the court stated that the action was of an expressive and political nature. Just because others do not like it, does not justify its suppression.
United States v. Eichman (1990)
In a 5-4 decision, the court stated the law was unconstitutional as it not suppresses free expression, but is also concerned with the content of the expression. Justice William Brennan commented that by allowing a disposal ceremony but prohibiting a political protest is a direct violation of the freedom of expression.

Final Assessment:

The final assessment is to write a new law regarding the burning of the American Flag as a part of free speech. You should take into account the court cases studied in this module. The major question to answer is should the symbol of the American Flag be protected in regards to free speech and expression? Are there specific conditions in which it should be protected? You will read your law in front of your class and answer any questions your classmates have about it.

Rubric Category





20 The proposed law is well put together and follows a logical progression addressing key points. The law takes into consideration precedents.

15 The proposed law is sound, but lacks either logical thought or does not fully understand the previous case law.

12 The proposed law is written, but does not adequately address court precedents or lacks logical thought of the issue.


20 The law is presented clearly and soundly. Questions that are fielded are answered completely and thoroughly.

15 The law is presented well, but there were minor gaffs in presentation. Question are answered well, but it may require additional clarification.

12 The law is poorly presented. It would have behooved the presenter to practice more. Questions were considered, but no insights were provided.


10 The law as presented has no errors in writing and has obviously been proofread.

8 There are minor errors in submission, another round of proofing would have cleared it up.

6 Major errors in presentation are found. No proofreading is evident.

Final Score ____/50

Cover Graphic:
Overview of the Controversy
Street v. New York:


Spence v. Washington (1974)
Texas v. Johnson:

United States v. Eichman

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