Document Type

Article

Publication Date

1990

Abstract

I am honored to lecture at this school, which has a number of friends, and a much larger circle of scholars whose work I admire. I am honored to lecture in the memory of Melville Nimmer, one of the country's leading thinkers on freedom of speech as well as its foremost expert on copyright. I met Professor Nimmer only once, at a lunch with Vince Blasi. My recollection of the lunch is distinct. Gently and in the most friendly way, but with irrefutable logic, they showed me that a position I had held for more than a decade about immigration limits and the first amendment was mistaken. I am stubborn enough so that does not happen too often. Before and after this lunch, I was struck by the great warmth with which colleagues always spoke about Mel Nimmer. The sentiments went well beyond intellectual respect to a deep affection. Mel obviously avoided the self-centeredness that academic efforts often breed. Perhaps the life of the mind is just another vanity, more innocuous than most; but concern for others is not a vanity. One of my strongest impressions about Mel Nimmer's personal relations is that he cared. That makes speaking in his memory a special privilege.

When I have worked on freedom of speech issues during the last few years, Mel's treatise has illuminated many problems. It confronts abstruse theoretical questions and manages them with enviable clarity, but it never forgets that law is about practical decisions affecting our lives. One of the strongest sections in the treatise is on symbolic speech; its discussion of flag desecration is among the best in the literature.

Flag burning has occupied much legal and political attention lately, and it is my topic here. I consider the soundness of the Supreme Court's decision last June in Texas v. Johnson under general first amendment principles and ask whether the outcome should be different for the federal statute whose validity is now under review. I also inquire whether some exception from ordinary principles is called for, to be achieved by a constitutional amendment if necessary. The analysis draws out broader aspects of the law of symbolic speech, and some references to Mel Nimmer's understanding suggest the richness of his thought about that subject.

Disciplines

Constitutional Law | First Amendment | Law

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