Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P3 docx

Unabomber’s insistence, major newspapers pub- lished his 35,000-word manifesto describing his anti-technology philosophy. In April 1996 a suspect, Theodore Kaczynski, was arrested for crimes associated with the Unabomber. After a rather bizarre trial, in 1998, Kaczynski pled guilty in exchange for a sentence of life without the possibi lity of parole. The bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, on April 19, 1995, galvanized concerns about domestic terrorism. The bombing killed 168 people and injured more than 500 others. The FBI arrested Timothy J. McVeigh and Terry Nichols, who were charged with MURDER and CONSPIRACY. McVeigh and Nichols were con- nected to the right-wing MILITIA movement, which opposes the powers held by the federal government and believes in the right of its members to bear arms. In June 1997 McVeigh was found guilty of murder and conspiracy, and sentenced to death. He attempted to appeal his conviction for three years, but gave up in late 2000. On June 11, 2001, McVeigh was executed by lethal injection. Nichols faced similar charges in his 1997 trial. He was acquitted on charges of first- and second-degree murder, but was found guil ty of conspiring to use a weapon of mass destruction and involuntary manslaughter. A federal judge sentenced Nichols to life in prison without the possibility of parole. Nichols was also convicted of 161 counts of murder by an Oklahoma state court jury in 2004. He was sentenced to consecutive life sentences for each count. One year after the Oklahoma City bombing, a bomb erupted at Atlanta’s Centennial Olym- pic Park during the celebra tion of the Olympic Games in July 1996. The bomb killed one woman and injured 111 others in what Presi- dent BILL CLINTON called an “evil act of terror.” The bombings remained unresolved until 2003, when authorities arrested Eric Rudolph. Au- thorities also suspected Rudolph of bombing ABORTION clinics in Atlanta and Birmingham, Alabama, as well as the bombing of a gay and lesbian nightclub in Atlanta. In 2005 he pled guilty to numerous HOMICIDE charges and was sentenced to consecutive life sentences. Congress responded to the threat of domes- tic terrorism with the enactment of several laws. In 1996 Congress passed the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214. The law allocated $1 billion to fund federal programs to combat terrorism. The act also established a federal death penalty for terrorist murders and strengthened penal- ties for crimes committed against federal emplo- yees while performing their official duties. In addition, the act increased the penalties for conspiracies involving explosives and for the possession of nuclear materials, criminalized the use of chemical weapons, and required plastic explosives to contain “tagging” elements in the explosive materials for detection and identifica- tion purposes. Following the attacks of September 11th, Congress, at the urging of President GEORGE W. BUSH, moved swiftly to enact the Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ( USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. The act established a Counterterrorism Fund in the U.S. Treasury and appropriated money for co mbat- ing terrorism to the FBI’s Technical Support Center. It also increased the president’s author- ity to seize the property of foreign persons, organizations, or countries that the president determines have planned, authorized, aided, or engaged in hostilities or attacks against the United States. Other provisions of the act focused on enhancing surveillance procedures used by federal law enforcement personnel, and attempts to control MONEY LAUNDERING, which is believed to be a major source of inco me for terrorist organizations. The act was reauthor- ized in 2006. Congress enacted the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, which formally endorsed the establishment of the HOMELAND SECURITY DEPARTMENT. This department had been created through EXECUTIVE ORDER by President Bush in 2001. The Home- land Security Act reorganized several federal agencies to fall under the authority of the Homeland Security Department in an effort to coordinate the government’s efforts. International Terrorism The September 11th attacks have been viewed as a continuation of a series of deadly terrorist activities that had taken place overseas. In the late twentieth century, terrorism became a tool of political groups in Europe, the Middle East, and Asia. The growth of international terrorism led to kidnappings, HIJACKING of airplanes, bom- bing of airplanes and buildings, and armed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 8 TERRORISM attacks on government and public facilities. In the 1980s, several countries, including Libya, Iran, and Iraq, were identified as supporting international terrorism by providing training, weapons, and safe havens. Interests of the United States overseas were major targ ets of terrorism. In November 1979 a group of Islamic students overran the U.S. embassy in Iran and took many hostages. Although some of the hostages were later freed, the Iranians detained 52 American hostages for a period of 444 days until they were released in January 1981, just after the swearing-in of President RONALD REAGAN. In 1983 a 12,000- pound truck bomb exploded in a U.S. com- pound in Beirut, Lebanon, killing 241 American soldiers. Al Qaeda By the 1990s, the terrorist organiza- tion al Qaeda (Arabic for “the Base”), led by Saudi dissident Osama Bin Laden, developed as the primary CULPRIT in terrorist attacks on U.S. interests at home and abroad. Al Qaeda is believed to be responsible for the 1993 attacks on the World Trade Center and the September 11 attacks. On August 7, 1998, truck bombs exploded nearly simultaneously at the U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. The blasts killed 224 people, including 12 Americans, and injured another 4,600. Four members of al Qaeda were later convicted for their part in the bombings. In October 2000, an al Qaeda operative conducted a SUICIDE attack on the U.S.S. Cole, resulting in the deaths of 17 sailors and injuries to over 30 others. The activities of Bin Laden and al Qaeda were well known prior to the September 11th attacks. Bin Laden had issued a religious edict, known as a fatwah, calling for attacks on U.S. troops and civilians. The United States has responded to inter- national terrorist organizations and the nations that support them through a variety of military actions. In March 1986 President Reagan ordered the military to conduct a strike on Libya, which was believed to have be en responsible for the bombing of a nightclub in Germany as well as other terrorist acts. After the embassy bombings in Tanzania and Kenya in 1998, President Clinton ordered strikes on al Qaeda military camps in Afghanistan. These attacks appeared to have little effect upon the terrorist activities of the organizations that perpetrated the violent acts. International Terrorist Incidents, 2005 to 2008 0 5,000 10,000 15,000 20,000 25,000 11,770 15,765 2008 14,506 22,508 2007 14,545 20,468 2006 11,157 14,560 2005 Year Number SOURCE: U.S. De p artment of State, Country Reports on Terrorism, 2008. Number of terrorist incidents Number of people killed in terrorist attacks ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION TERRORISM 9 Following the September 11th attacks, the United States changed its strategy regarding terrorists significantly. President Bush an- nounced that the United States would consider nations that harbor terrorists as equally respon- sible for terrorist activities. In the latter part of 2001, the United States led an international coalition that removed the Taliban regime from power in Afghanistan. After the United States shifted military assets in 2002 for the impending invasion of Iraq, the Taliban began returning from their bases in Pakistan to attack coalition troops and the new Afghan government. In 2009 President BARACK OBAMA authorized the deploy- ment of 20,000 additional troops as the Taliban regained strength. Attacks by military drone aircraft against Taliban camps in Pakistan raised concerns about the viability of the government of Pakistan, which possesses NUCLEAR WEAPONS. In March 2003, the United States led another coalition in an attack on Iraq, which the Bush administrated asserted had supported terrorist organizations such as al Qaeda and possessed WEAPONS OF MASS DESTRUCTION (WMD). Within weeks, Iraq’s leader, Saddam Hussein, was removed from power but subsequent investigations revealed no WMD and no links to al Qaeda. The civil unrest in Iraq led to the creation of al Qaeda in Iraq, a terrorist group that attracted Islamic fighters from many countries as well as disaffected Sunni Iraqis. Thousands of terrorist bombings and murders occurred between 2004 and 2009, though the level of violence had declined by 2009. The Bush Administration’s “war on terror” drew increasing criticism within the United States and overseas. The harsh treatment of terrorist suspects at Guantanamo Bay, Cuba, produced an international outcry when it was revealed that the men had been subjected to “enhanced interro- gation” techniques. Critics charged that many of the techniques constituted torture. In a series of U.S. SUPREME COURT cases, the justices rejected the government’s assertion that these suspects had no legal rights to challenge their confinement. In 2009 President Barack Obama announced that the Guantanamo Bay facility would be closed within a year and that the prisoners would be brought to the United States for trials before federal courts and military commissions. The removal of the regimes in Afghanistan and Iraq did not end the threat of terrori sm in the Middle East or elsewhere. In May 2003, shortly after the United States declared that the active phases of its armed military operations in Iraq had concluded, terrorists bombed residen- tial compounds in Riyadh, Saudi Arabia, killing at least 34 people, including nine Americans. Four days after the Saudi Arabia attacks, bombs erupted in Casablanca, Morocco, killing 43 people. Authorities suspected that al Qaeda operatives were responsible. By 2008 the government asserted that terrorist attacks had declined significantly. Based on statistics compiled by the National Counterter- rorism Center (NCTC), the number of worldwide attacks by terrorists in 2008 was 11,770—an 18 percent decline from the 14,506 attacks in 2007. The number of deaths in 2008 due to terrorist attacks was 15,765, a decline of 30 percent from 22,508 deaths in 2007. The STATE DEPART- MENT concluded that al Qaeda and its associated networks had steadily lost ground but cautioned that the group remained the greatest terrorist threat to the United States and its partners. FURTHER READINGS Abrams, Norman. 2003. Anti-terrorism and Criminal Enforcement. St. Paul, MN: West. Bruff, Harold H. 2009. Bad Advice: Bush’s Lawyers in the War on Terror. Lawrence: Kansas Univ. Press. Cassidy, Robert. 2008. Counterinsurgency and the Global War on Terror: Military Culture and Irregular War. Palo Alto, CA: Stanford Univ. Press. Pious, Richard. 2006. The War on Terrorism and the Rule of Law. New York: Oxford Univ. Press. Piszkiewicz, Dennis. 2003. Terrorism’s War with America: A History. Westport, CT: Praeger. Saul, Ben. 2008. Defining Terrorism in International Law. New York: Oxford Univ. Press. Shanty, Frank, and Raymond Picquet, eds. 2003. Encyclope- dia of World Terrorism. Armonk, NY: Sharpe Reference. CROSS REFERENCE War on Terrorism. TERRY V. OHIO In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the U.S. Supreme Court ruled that the FOURTH AMENDMENT to the U.S. Constitution permits a law enforcement officer to stop, detain, and frisk persons who are suspected of criminal activity without first obtaining their consent, even though the officer may lack a warrant to conduct a search or PROBABLE CAUSE to make an arrest. Now known as a Terry stop, this type of police encounter is constitutionally permissible only when an offi- cer can articulate a particularized, objective, and reasonable basis for believing that criminal GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 10 TERRY V. OHIO activity may be afoot or that a given suspect may be armed and dangerous. The case stemmed from an incident in Cleveland, Ohio, in 1963. Police officer Martin McFadden observed three men engaging in suspicious behavior near the corner of Euclid Avenue and Huron Road. One of the suspects was the DEFENDANT, John Terry. Along with co-defendant Richard Chilton and a third man, known only as Katz, Terry w as seen pacing in front of a downtown store. Occasionally, the men would pause to confer with each other. More often, McFadden witnessed the men peering into the store’s front window. Over a period of ten to twelve minutes, the three men looked into the same store window approxi- mately 24 times. Based on his training as an officer and 39 years of experie nce on the police force, includ- ing 35 as a detective, McFadden believed that the suspects were “casing” the store for a ROBBERY. Attempting to forestall a possible robbery, McFadden approached the three men and identified himself as a police officer. Not being familiar with any of the suspects, McFad- den asked for their names. When the men mumbled unintelligibly in response, McFadden grabbed Terry, quickly patted down his over- coat, and discovered a .38-caliber revolver. After removing the pistol from Terry’s coat pocket, McFadden patted down the other two suspects, finding another revolver in Chilton’s overc oat. Katz was not armed. Terry and Chilton were charged with car- rying concealed weapons. Prior to trial, the two defendants brought a motion to suppress the incriminating evidence seized by Officer McFad- den. The defendants argued that the weapons were inadmissible as ev idence because McFad- den had discovered them during an unlawful search. McFadden, the defendants pointed out, possessed neither a valid SEARCH WARRANT autho- rizing the pat-down nor PROBABLE CAUSE to detain them. Denying their motion to suppress, the court scheduled the matter for trial, and both defendants were found guilty. The Supreme Court of Ohio affirmed the convictions, and the defendants appealed to the nation’s highest court. The U.S. Supreme Court divided its opinion into three parts. First, the Supreme Court ruled that the defendants enjoyed qualified protection from temporary police detention under the FOURTH AMENDMENT . Before a court will examine the propriety of police activity under the Fourth Amendment, it must first determine whether the interests asserted by a defendant are con- stitutionally protected. The Fourth Amendment governs areas where individuals maintain a reasonable expectation of privacy, including a zone of personal freedom in which every indi- vidual is secure from unnecessary and unreason- able governmental intrusion. The Court said that Terry and Chilton held a reasonable expectation that their personal liberty would not be unlawfully restrained by law enforcement as they were walking down the street. Second, the Court ruled that the defendants’ freedom was effectively impeded by their encounter with Officer McFadden. Any time a police officer accosts an individual to detain him or her for questioning, the Court empha- sized, the officer has “seized” that person within the meaning of the Fourth Amendment. It would be nothing less than “torture of the English language,” the Court added, to suggest that McFadd en’s pat down of the suspects’ clothing was anything other than a “search” as that term is defined in the Constitution. Third, the Court ruled that Officer McFadden had acted reasonably during his encounter with the defendants. Acknowledging that the Constitution generally requires probable cause to effect an arrest, and a lawfully executed warrant to conduct a search, the Court identified a third area of police activity that is permissible under the Fourth Amendment, though it may amount to neither a full-blown search nor a technical arrest. The central inquiry under the Fourth Amendment, the Court wrote, is whether the police have acted reasonably under the cir- cumstances. The express language of the Fourth Amendment does not prohibi t all warrantless searches performed without probable cause, only those that are unreasonable. In responding to rapidly unfolding and increasingly dangerous situations, the Court said, police may find it impractical or impossi- ble to obtain a search warrant before choosing to intervene. In other situations, injury or harm may result to bystanders if law enforcement is made to wait until it has probable cause before acting. The Court indicated that the Fourth Amendment gives law enforcement flexibility to investigate, detect, and prevent criminal activity. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TERRY V. OHIO 11 According to Terry, this flexibility includes the right of police officers to stop persons suspected of criminal activity and detain them for questioning. If during questioning police are led to believe that a suspect is armed and dangerous, an officer may frisk the suspect without violating the Fourth Amendment. In this case, the Court noted that Officer McFadden had personally witnessed the two defendants engaging in what appeared to be preparations for a robbery. It would have been negligent, the Court thought, for McFadden to have turned a blind eye to such behavior. Given that he chose to investigate further, the Court said, it was reasonable for McFadden to assure himself that none of the suspects was armed, especially after they failed to respond intelligibly to his request for identification. In patting down and frisking the defendants, McFadden chose a prudent course to stave off threats to his security and the security of others. The Court reached its holding by BALANCING the legitimate needs of law enforcement against the privacy interests of individuals. Forcible detention of individuals for questioning is far from a petty indignity. Even a limited search of outer clothing, the Court stressed, constitutes a “serious intrusion upon the sanctity of the person, which may inflict great indig nity and arouse strong resentment, and it is not to be undertaken lightly.” At the same time, law enforcement must not be restricted from performing its job in a proficient manner. The Fourth Amendment does not restrict police from intervening until after a crime has been committed. Crime prevention is a bona fide goal of law enforcement, the Court said, and the Fourth Amendment places only reasonable restrictions upon pursuit of that goal. Outlining these restrictions, the Court said that no police officer may lawfully stop and detain a person for questioning unless the officer first observes unusual conduct that arouses a reasonable suspicion of criminal activity. A stop may be no longer than necessary to confirm or dispel an officer’s suspicion and must not be unnecessarily restrictive or intru- sive. During the period of detention, no searches may be performed unless the officer has an objective and particularized basis for believing the suspe ct is armed and dangerous. Any search must be limited to the suspect’s outer clothing and may be performed only for the purpose of discovering concealed weapons. Evidence obtained during searches that com- port with these restrictions, the Court said, is admissible under the Fourth Amendment. Evidence obtained in violation of the limitations set forth in Terry may be suppressed under the EXCLUSIONARY RULE. The decision in Terry has also been used to justify traffic stops of vehicles. When an officer pulls over a vehicle based on reasonable sus- picion of criminal activity, the stop is referred to as a “rolling” Terry stop. FURTHER READINGS Bandes, Susan. 1999. “Terry v. Ohio in Hindsight: The Perils of Predicting the Past.” Constitutional Commentary 16 (winter). Lichtenberg, Illya D., Alisa Smith, and Michael Copeland. 2001. “Terry and Beyond: Testing the Underlying Assumption of Reasonable Suspicion.” Touro Law Review 17 (winter). Saltzburg, Stephen A., Daniel J. Capra, and Angela J. Davis. 2009. Basic Criminal Procedure. 5th ed. St. Paul, Minn.: West. Whitebread, Charles H., and Christopher Slobogin. 2000. Criminal Procedure: An Analysis of Cases and Concepts. New York: Foundation. CROSS REFERENCES Constitutional Law; Criminal Procedure; Search and Seizure; Stop and Frisk. TEST CASE A suit brought specifically for the establishment of an important legal right or principle. The term test case describes a case that tests the validity of a particular law. Test cases are useful because they establish legal rights or principles and thereby serve as precedent for future similar cases. Test cases save the judicial system the time and expense of conducting proceedings for each and every case that involves the same issue or issues. To illustrate, assume that Cong ress passes a law that makes using a cellular ph one while driving a misdemeanor punishable by up to one year in jail and a fine of $10,000. Such a law would likely be challenged by a large number of cell phone owners, all of whom are in essentially identical circumstances and all of whom have the same arguments against the law. In such a situation, attorneys representing the plaintiffs might look for a case with a sympathetic set of facts with which to challenge the law. For example, they might select a case involving a driver who was charged with violating the law GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 12 TEST CASE when she used her cell phone to request medical assistance for a family member. Other observant law firms would postpone or otherwise delay their own similar cases to wait for the outcome of the test case. A test case need not concern a new law. Suppose, for example, an attorney or client is dissatisfied with the current state of a particular law and has strong arguments in favor of changing it. If the facts of the case give the attorney or client a good chance of prevailing, the case may be called a test case because the outcome would change the law for future persons in similar circumstances. In some cases, a person may choose to violate an existing law to provoke a lawsuit, prosecution, or penalty. The person may then challenge the lawsuit, prosecution, or penalty and use the case to try and change the law through a judicial opinion. In Druker v. Commissioner of Internal Revenue, 697 F.2d 46 (2d Cir. 1982), cert. den., 461 U.S. 957, 103 S. Ct. 2429, 77 L. Ed. 2d 1316 (1983), for example, James O. and Joan Druker, a married couple, intentionally used the lower tax rates for unmarried individuals in computing their 1975 and 1976 INCOME TAX because they believed the federal tax scheme was unconstitutional under the EQUAL PROTECTIO N CLAUSE of the FOURTEENTH AMENDMENT. Before the INTERNAL REVENUE SERVICE (IRS) could take action against the Drukers, the Drukers filed suit against the commissioner of the IRS. The Drukers were unsuccessful, but had they received a favorable disposition, they would have succeeded in changing the law on federal taxation of married couples. CROSS REFERENCES Case Law; Stare Decisis. TESTACY The condition or state of leaving a valid will at one’s death to direct the distribution of one’s estate. TESTAMENT Another name for a will. TESTAMENTARY Relating to wills. An individual is said to have testamentary capacity to make a will when that person has sufficient mental ability to comprehend what he or she is doing, the nature and extent of his or her property, the natural objects (which means appropriate persons or recipients) of his or her bounty, and the interrelationships among these three concepts. TESTATE One who dies leaving a valid will, or the description of this status. TESTATOR One who makes or has made a will; one who dies leaving a will. A testator is a person who makes a valid will. A will is the document through which a deceased person disposes of his property. A person who dies without having made a will is said to have died intestate. A testator must be of sound mind when making a will. In part to ensure that a testator is of sound mind, states require that the signing of a will be witnessed by multiple persons. A testator also shou ld be making the will without duress and free of coercion from other persons. If the testator is not acting of her own free will in consenting to the terms of the will, a court may later void all or part of it. TESTIFY To provide evidence as a witness, subject to an oath or affirmation, in order to establish a parti- cular fact or set of facts. Court rules require witnesses to testify about the facts they know that are relevant to the determination of the outcome of the case. Under the law a person may not testify until he is sworn in. This requirement is usually met by a witness swearing to speak the truth. A person who does not believe in appealing to God may affirm to the court that the testimony about to be given is the truth. A witness may testify as to facts directly observed, which is called direct evidence; facts learned indirectly, which is called CIRCUMSTAN- TIAL EVIDENCE ; or, in the case of an expert, an opinion the expert has formed based on facts embodied in a hypothetical question. The parties to the court proceeding are free to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TESTIFY 13 question a witness as to the truthfulness of the testimony or the competence of the witness. The FIFTH AMENDMENT to the U.S. Constitu- tion gives the defendant in a criminal trial the right not to testify, so as to avoid SELF- INCRIMINATION. In addition, the rule that a person must testify when called as a witness has several exceptions based on the existence of a special relationship between the defendant and the potential witness. Among the most important of these exceptions are confidential communications between a husband and a wife, an attorney and a client, a doctor and a patient, and a priest and penitent. The RULES OF EVIDENCE govern what a person may testify about at a court proceeding. Though there are numerous exceptions, generally a witness may not testify about what she heard another say if that testimony is offered to prove the truth of the matter asserted. Such testimony is known as HEARSAY. For example, if the witness testifies that he heard that JOHN DOE was married and this statement is offered to prove that John Doe was married, it is hearsay and the court will strike the testimony from the record. CROSS REFERENCES Attorney-Client Privilege; Marital Communications Privilege; Physician-Patient Privilege; Privileged Communication. TESTIMONY Oral evidence offered by a competent witness under oath, which is used to establish some fact or set of facts. Testimony is distinguishable from evidence that is acquired through the use of written sources, such as documents. TEXAS V. JOHNSON In Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), the U.S. Supreme Court was asked to review the constitutionality of a Texas statute prohibiting the desecration of certain venerated objects, including state and national flags. The defen- dant was convicted under the statute for burning the U.S. flag during a political demon- stration. In striking down the statute, the Supreme Court ruled that flag burning is SYMBOLIC SPEECH protected by the Free Speech Clause of the FIRST AMENDMENT to the U.S. Constitution. The case splintered the nine Supreme Court justices, much as the issue of flag burning splintered the rest of the nation. The case stemmed from an incident during the 1984 Republican National Convention in Dallas, Texas. Outside the convention center a group of demonstrators marched through the streets to protest the policies of President RONALD REAGAN . Several demonstrators distributed lit- erature, shouted slogans, and made speeches. One demonstrator, Gregory Lee Johnson, unfurled a U .S. flag, doused it with kerosene, and set it on fire. While the flag burned, several protestors chanted: “America, the red, white, and blue, we spit on you.” Several bystanders were offended by the flag burning, and one took the flag’ s remains home to his backyard where he buried them. No violence or alter- cations took place at any time during the demonstration, however. Johnson was convicted of desecrating a venerated object in violation of Texas Penal Code section 42.09(a)(3) (1989). He was sen- tenced to one year in prison and fined $2,000. His conviction was affirmed by the Fifth District Court of Appeals in Dallas. Johnson’s case was then reviewed by the Texas Court of Criminal Appeals, which reversed his conviction, holding that the state could not punish Johnson for burning the U.S. flag under these circumstances (Johnson v. State, 755 S.W.2d 92 [Tex. Crim. App. 1988]). The Free Speech Clause, the court ruled, forbids the government from establish- ing an orthodox symbol of national unity that is insulated from public criticism, symbolic or otherwise. In a 5–4 decision the U.S. Supreme Court affirmed the holding of the Texas Court of Criminal Appeals. Joined by Justices THURGOOD MARSHALL , HARRY A. BLACKMUN, ANTONIN SCALIA, and ANTHONY KENNEDY, Justice WILLIAM J. BRENNAN JR . wrote the majority opinion for the Court. Chief Justice WILLIAM H. REHNQUIST, joined by Justices SANDRA DAY O’CONNOR, BYRON WHITE , and JOHN PAUL STEVENS, wrote the dissenting opinion. The majority opinion was divided into two parts. First, the Court ruled that flag burning is expressive conduct for First Amendment pur- poses. The Court noted that the defendant’s method of protest was not confined to the written or spoken word, which traditionally receives the most constitutional protection from governmental restraint. Nevertheless, the Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 14 TESTIMONY said, flag burning could not be fairly character- ized as mere conduct devoid of any communi- cative qualities, w hich traditionally receives little or no protection under the Free Speech Clause. Instead, the Court observed, the defendant burned the flag as the symbolic culmination of an ardent political demonstration. “The expres- sive, overtly political nature of the conduct,” the Court wrote, “was both intentional and over- whelmingly apparent.” Symbolic expression has long been associ- ated with the U.S. flag under the federal Constitution. In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), the Supreme Court ruled that public school children cannot be compelled to salute the flag when doing so would violate their religious beliefs, which are protected by the First Amendment. In Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974), the Court ruled that the Free Speech Clause guarantees the right of indivi- duals to attach a peace symbol to the flag in protest of U.S. foreign policy. Finally, in Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974), the Court ruled that individuals enjoy a First Amendment right to express themselves by affixing the flag to articles of clothing, even if that means allowing certain individuals to display the flag on the seat of their pants. Each of these cases was cited by the Court in Texas v. Johnson to illustrate that the defendant’s method of protest was just another manifestation of symbolic expression involving the U.S. flag. Second, the Supreme Court ruled that the interests asserted by the government were insufficient to overcome the defendant’s right to engage in symbolic expression. The govern- ment had argued that the Texas statute represented a legislative attempt to prevent societal disorder, which presumably would result if flag burning were permitted. But the Court determined that the defend ant’s actions neither resulted in disorder nor created a substantial likelihood that disorder would ensue. Although several onlookers were seri- ously offended by the defendant’s symbolic protest, the Court said that the First Amend- ment is designed to protect even the most disagreeable speech unless it is likely to produce imminent lawlessness, such as a breach of the peace. Had disorder resulted on this particular occasion, the Court pointed out, the de fendant could have been prosecuted under the relevant provisions of the Texas Penal Code prohibiting breach of the peace. Because no arrests were made for breaching the peace, the Court held, the government’s interest in preventing disorder was not implicated in this case. The government also argued that the Texas flag desecration statute was a justifiable means of promoting national unity. The national flag, the government contended, is the country’s most visceral image of nationhood, reflecting the solidarity of the 50 states for the common good. Flag burning, by contrast, tends to cast doubt on the strength of this image, the gov- ernment asserted, causing Americans to question whether the United States is really united at all. The Supreme Court agreed with the govern- ment in part, acknowledging that the flag has come to symbolize 200 years of nationhood no less than the combination of letters found in the word “America.” At the same time, the Court cautioned, the flag does not mean the same thing to everyone. For some Americans the flag stands for an imperialistic foreign policy and a legacy of CIVIL RIGHTS violations. The defendant no doubt had his own list of things symbolized by the flag. In prohibiting flag burning and other forms of desecration, the Court continued, the state of Texas was attempting to prescribe a single patriotic meaning for this national political symbol. The Court noted, however, that the government has no constitutional authority to restrict the content of political expression, whether it be written, spoken, or symbolic, without offering a compelling reason for doing so. In this case, no compelling reasons w ere offered. If the flag were protected from desecration under the First Amendment, the Court reasoned, the government might seek to protect other national symbols from destruction as well, including copies of the federal Consti- tution and the Declaration of Independence. The Court was unwilling to allow the govern- ment to embark on this path for fear of where it might lead. The only proper remedy for the state of Tex as, the Court emphasized, was to publicly encourage proper respect for the flag by honoring it through state-sponsored ceremo- nies such as Flag Day. In the marketplace of ideas, the Court opined, the only way to combat pernicious speech is through persuasive coun- tervailing speech. The First Amendment requires individuals to persuade each other GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TEXAS V. JOHNSON 15 with sound arguments, not silence each other through governmental suppression. In his dissenting opinion, Chief Justice Rehnquist wrote that “No other American symbol has been as universally honored as the flag.” The chief justice paid tribute to the men and women of the armed forces who have sacrificed their lives to preserve the freedom symbolized by the flag. According to the chief justice, flag burning evinces a distinct lack of respect for the memory of those who have fought and died for the cause of liberty in the United States. While burning the flag might be considered expressive conduct, Rehnquist ar- gued, the state of Texas, as well as every other state in the Union, has a compelling interest in preserving it from destruction and desecration. Justice Brennan tried to address some of the concerns raised by Rehnquist in a brief para- graph included in the Court’s majority opinion. “We are tempted to say ” Brennan wrote, “that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today.” The Court’s decision, Brennan stressed, underscores the “principles of freedom and inclusiveness that the flag best reflects” and reaffirms “the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength.” The Court applied the same approach to a federal flag burning law as it did to the Texas statute. After the decision in Johnson, President GEORGE H. W. BUSH proposed a constitutional amendment banning the burning and desecra- tion of the American flag. Congress rejected this approach and instead passed the Flag Protection Act of 1989, Pub. L. 101-131, 103 Stat. 777, believing it had addressed the concerns of the Supreme Court and that the statute did not violate the First Amendment. Within minutes after the law went into effect, Shawn Eichman burned several flags on the steps of the U.S. Capitol. That same night, Mark John Haggert y set fire to a U.S. flag in front of the U.S. Courthouse in Seattle. Eichman and Haggerty were arrested and charged with violating the act. The district courts dismissed the charges, ruling that the act violated the holding in Johnson. The Supreme Court, in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990) struck down the Flag Protection Act on a 5–4 vote. Justice Brennan, in his majority opinion, held that Congress cannot enact a law curtailing an individual’s right to symbolic political expression. The act was not content-neutral because it allowed prosecution for disrespectful burning but allowed for respectful burning. In addition, the government may not ban the expression of an idea simply because it finds the idea offensive. The asserted intent of Congress to protect the “physical integrity” was a transpar- ent ruse; Congress had sought to ban protected symbolic expression. FURTHER READINGS Goldstein, Robert Justin. 2000. Flag Burning and Free Speech: The Case of Texas v. Johnson. Lawrence: Univ. Press of Kansas. Miller, J. Anthony. 1997. Texas v. Johnson: The Flag Burning Case. Springfield, N.J.: Enslow Publishers. Schmidt, Steffen W., and Mack C. Shelley. 2009. American Government and Politics Today - Texas Edition. 14th ed. Boston, M.A.: Wadsworth Publishing. Tompkins, Nancy. 1997. Texas v. Johnson: Defending the Flag. New York: Franklin Watts. CROSS REFERENCE Freedom of Speech. TEXAS V. WHITE In the aftermath of the U.S. CIVIL WAR, several questions about the legal status of the Southern states that had seceded from the Union remained unanswered. These questions in- cluded whether these states had, in fact, left the Unio n, whether the acts of the secessionist governments had legal effect after the war, and whether the imposition of military rule by the president and Congress on these states during the postwar Reconstruction meant that the states were not fully restored to the Union. The Supreme Court addressed these issues in Texas v. White, 74 U.S. (7 Wall.) 700, 19 L. Ed. 227 (1869),whichinvolved a disputeover the payment of U.S. bonds. In 1850 Texas had received $10 million in bonds from the United States in settlement of boundary claims. The bonds were payable to the state and redeemable after Decem- ber 31, 1864. Texas law required the governor to endorse the bonds before they could be redeemed or transferred. When Texas seceded from the Union in 1862, however, the Confederate legisla- ture repealed the gubernatorial endorsement requirement and established a military board to sell the bonds to finance the war effort. In 1865 George White and John Chiles, among others, purchased the bonds in exchange GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 16 TEXAS V. WHITE for cotton and medicine. None of the bonds were endorsed by the governor. After the war the people of Texas convened and established a constitution under which they elected a gover- nor in 1866. The convention also authorized the governor to seek recovery of the bonds. In 1867 Congress enacted the Reconstruction Acts, which created five military districts in Texas, each with a military commander. The military rule was imp osed to ensure the restoration of civil peace in the Southern states and to protect the righ ts of the newly freed slaves. Texas filed suit in the U.S. Supreme Court seeking recovery of the bonds sold to White and Chiles and subsequently resold to citizens of many states. The state also asked that the United States be enjoined from paying the bonds because they had not been endor sed by the governor and were past due when presented for payment. White argued that Texas had no right to bring the suit and that the Supreme Court had no jurisdiction to hear the case because Texas’s status as a state had changed due to its secession during the Civil War. Thus, federal law was not applicable at the time the bonds were transferred. The Supreme Court rejected the bond- holders’ arguments. Chief Justice SALMON P. CHASE, in his majority opinion, held that the Constitution “in all its provisions, looks to an indestructible Union, composed of indestructi- ble States.” Once a territory gained admission to the Union as a state, its relationship to the Union was perpetual and indissoluble unless terminated by revolution or consent of the states. Therefore, the secession of the insurgent government from the Union was void. Texas remained a state during the Civil War, and its citizens were still citizens of the United States. The defeat of the secessionist Texas regime left Texas without a lawful government, and its rights as a member of the Union were suspended. The Court ruled that under the Guarantee Clause of the U.S. Constitution the U.S. government had the right to provide Texas with a republican form of government. Hence, the president was authorized to establish a provisional governmen t. This action, which had been ratified by Congress in the Reconstruction Acts, buttressed the federal government’s right to oversee the post–Civil War South. Based on these principles, the Court easily disposed of the substantive issues. The Court held that the state had retained title to the bonds. The contract made by the illegal sec- essionist government with White and other bondholders was void, as this government had no legal authority to make the contract. The bonds themselves were not negotiable because they were not endorsed by the governor. The repealing statu te enacted by the Confederate government was void because of its illegal purpose. The bondholders who had purchased the bonds from White and Chiles could be denied payment because they had assumed a risk of bad title, as the bonds were already past due and were sold at a price substantially lower than face value. FURTHER READINGS Gray, Tonya M. 1999. “Separate But Not Sovereign: Reconciling Federal Commandeering of State Courts.” Vanderbilt Law Review 52 (January). Hyman, Harold M. 1997. The Reconstruction Justice of Salmon P. Chase: In Re Turner and Texas v. White. Lawrence: Univ. Press of Kansas. THEATERS AND SHOWS Theaters and shows are comprehensive terms for places where all types of entertainment events can be viewed, including films, plays, and exhibitions. Because these types of entertainment affect the public interest, they may properly be subjected to government regulation. The power to regulate must, however, be exercised reason- ably, because it restrains the free speech rights of performers, filmmakers, and distributors. A city is not per mitted to prohibit all theaters or shows, for example, but it can properly set forth regulations governing fire safety and crowd control. In addition, minors, unaccompanied by a parent or guardian, can be forbidden to attend shows or performances after dark or those deemed adult entertainment. Public séances for money-making purposes are sometimes unlaw- ful because they can be used to cheat certain individuals. Temporary shows likely to attract large crowds over a short period of time, such as outdoor rock music concerts, must be approved in advance by authorities who must supervise plans to protect the health and safety of both the people attending the show and those who reside in the area. As far back as 1919, when Justice Oliver Wendell Holmes Jr. remarked that falsely shouting fire in a theater would cause a panic, the need to regulate theater buildings has been GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION THEATERS AND SHOWS 17 . criminal activity. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TERRY V. OHIO 11 According to Terry, this flexibility includes the right of police officers to stop persons suspected of criminal activity. with violating the law GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 12 TEST CASE when she used her cell phone to request medical assistance for a family member. Other observant law firms would. bonds in exchange GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 16 TEXAS V. WHITE for cotton and medicine. None of the bonds were endorsed by the governor. After the war the people of Texas convened