US Supreme Court decides that Flag Burning is protected under the 1st Amendment

In breaking news, the Supreme Court decided 5-4 in the case of Texas v Johnson that flag burning is protected under the 1st Amendment of the United States Constitution. During the Republican National Convention of 1984 which was being held in Dallas, Texas, Gregory Lee Johnson burned an American Flag outside of the convention center in protest of President Reagan’s policies and the Reagan administration in general. No one was injured during the incident but there were several people who witnessed the event who were extremely offended by the flag burning. In the original trial, Johnson was “convicted of desecration of a venerated object in violation of a Texas statute, and a state court of appeals affirmed” but the Texas Court of Criminal Appeals reversed the decision saying that flag burning was protected by the First Amendment as an expression of free speech (symbolic speech). The State’s position was that the American flag is a symbol of national unity that needs to be preserved and that burning one could be seen as a threat to peace.

This case went to the Supreme Court and Justice Brennan delivered the opinion. To open, he stated: “After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not”. In this majority opinion, it was made clear that while the First Amendment specifically says “speech”, the courts recognize that this does not only mean written or spoken words. Justice Brennan notes: “If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role, we would be saying that when it comes to impairing the flag’s physical integrity, the flag itself may be used as a symbol only in one direction. We would be permitting a State to “prescribe what shall be orthodox” by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity. We never before have held that the Government may ensure that a symbol be used to express only one view of that symbol or its referents”. This is an important key as to why the Supreme Court decided the way that they did. It is important to note, however, that just because the Supreme Court decided in favor of Johnson, does not mean that the American flag holds less meaning to them or that they condone this type of behavior. In fact, Justice Brennan states: “We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation’s resilience, not its rigidity, that Texas sees reflected in the flag — and it is that resilience that we reassert today. 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”. The majority opinion concludes with an affirmed decision of the Texas Court of Criminal Appeals because “The State’s interest in preventing breaches of the peace does not support his conviction, because Johnson’s conduct did not threaten to disturb the peace. Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression”.

The concurring opinion, written by Justice Kennedy asserts the fact this case “illustrates better than most that the judicial power is often difficult in its exercise” and “the hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right [p421] in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases”. Justice Kennedy agrees with the majority opinion because Johnson’s actions were “speech” and protected by the Constitution.

Four Supreme Court Justices dissented and Justice Rehnquist wrote a dissenting opinion with Justice White and Justice O’Connor. They state: “For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here”. They used words from Ralph Waldo Emerson that described the Revolutionary War to illustrate the meaning and importance of the flag as a unifying symbol of our nation. They also illustrated the importance of the flag during the Civil War and how, in the end, it represented “an indestructible union”. They also talked about the importance of the flag during both World Wars and brought up Iwo Jima and the iconic image of heroic Marines raising a flag. They go on to talk about the Korean War and Vietnam as well and reiterate that: “The flag symbolizes the Nation in peace as well as in war” and they talk about Memorial Day and how a flag is placed on caskets of deceased Armed Forces members and then given to their families as a sign of honor and a mark of respect to their memories. They believe that the American flag is not just some idea or point of view, but something so much more than that. They believe that the States and Federal Government have the power to protect the American flag from “acts of desecration and disgrace”. Rehnquist concludes that: “The Court decides that the American flag is just another symbol…for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight. I would uphold the Texas statute as applied in this case”.

Justice Stevens also wrote a dissenting opinion. Much like in the other dissenting opinion, Justice Stevens believes that the American flag is a symbol of courage, determination, freedom, equal opportunity, religious tolerance, and goodwill for others. Justice Stevens states that the “value of the flag as a symbol cannot be measured” and that “sanctioning the public desecration of the flag will tarnish its value — both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression”. Justice Stevens concludes: “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. 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”.

Clearly, the Supreme Court had a difficult time deciding this case but in the end, it was determined by a close margin that flag burning is protected under the United States Constitution as a form of free speech. This is a landmark case in our history.



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