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Does Demonstration Ban Comport with Constitution?

In his concurrence in the 1989 flag-burning case, Texas v. Johnson, Justice Anthony Kennedy wrote that the justices were weighing two competing interests: “a clear and simple statute” that outlawed burning the American flag and “a pure command of the Constitution,” which allows for freedom of speech that could sanction flag burning.

Kennedy sided with Johnson, permitting flag burning under the First Amendment, writing that the First Amendment is so broad the justices should fear “undermining a valued principle that dictates the decision” in Johnson’s favor.

Unfortunately, Justice Kennedy and his colleagues have not extended this line of thinking to the steps of the Supreme Court building itself. With demonstrations banned from the plaza, the court is favoring “a clear and simple statute” over the “pure…Constitution.”

Fix the Court believes that the justices, in the interest of being consistent with the First Amendment, should not prevent the public from congregating on the spacious plaza in front of the building – and they can allow such demonstrations without compromising their safety.

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