“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”- Justice Brennan (491 U.S. 397)
Lights up on Dallas, Texas, 1984. A political demonstration titled the Republican War Chest Tour is being held outside the Dallas City Hall to protest the Vietnam war. As the protest’s climax, a man named Gregory Lee Johnson sets an American flag a-blaze. Immediately after, Johnson is charged with desecration of a venerated object under Texas state law and thrown into jail. Johnson argues his First Amendment right to free speech was violated and challenges the charge. His case makes it to the supreme court and in a 5-4 decision the court named the Texas law unconstitutional.
“Pregnant with expressive content, the flag as readily signifies the Nation as does the combination of letters found in ‘America’”- Justice Brennan (491 U.S. 397)
How did the court come to this decision? It first had to decide if the First Amendment was in play at all. Was Johnson’s burning of the American flag a form of speech? According to the Spence v. Washington precedent, “speech” occurs when a message is both intended to be heard and also received by an audience. By burning the flag during a political protest in front of a government building, Johnson was clearly intending to convey a message of dissatisfaction and the intense reaction of the American people and the Texas government made clear that a message was received. This was a First Amendment issue.
“It is, in short, not simply the verbal or nonverbal nature of the expression, but the governmental interest at stake, that helps to determine whether a restriction on that expression is valid.”- Justice Brennan (491 U.S. 397)
However, was the Texas law itself specifically related to the suppression of free speech or was it just an unhappy coincidence that speech had been censored because of the law? If the government’s interest in creating and keeping a law is unrelated to the suppression of speech the court will hold the law to a lower standard of scrutiny as decided by United States v. O’Brien. If a law directly relates to the suppression of expression, there must be a highly substantial governmental interest to justify it and therefor the court will use a stricter scrutiny.
“The emotive impact of speech on its audience is not a ‘secondary effect’ unrelated to the content of the expression itself.”- Boos v. Barry (485 U.S. 312)
Texas claimed there were two overwhelming government interests in creating the law against desecrating the flag:
- keep the peace
- preserve the flag as a symbol of nationhood.
The governmental duty to keep the peace is a reason for the law separate from expression. However, the state’s interest to preserve the flag as a symbol of nationhood is directly related to expression and therefore the court used strict scrutiny to evaluate the constitutionality of the Texas law.
“Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens” – Justice Brennan (491 U.S. 397)
The court determined the government interest to keep the peace was unnecessary because burning the flag had created no clear and present danger to the peace.The testimonials of those who had seen the flag burned testified to feeling extremely offended but not violent or lawless. Johnson’s burning of the flag was not incitement- meaning speech that is directed and likely to incite, imminent lawless actionas defined by the Brandenburg v. Ohio precedent.
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics , nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. “ -West Virginia State Board of Education v. Barnette (319 U.S. 624)
The state’s second interest of protecting the flag’s status as a symbol of freedom was also concluded by the court to be unwarranted. In instances when the flag has become too worn is a form of respect and endorsed by the government. The Texas law allowed the flag to be burned as an expression of reverence and respect but not as an expression of negative feelings such as dissatisfaction or hatred. Johnson’s burning of the flag was an expression of political dissatisfaction. The court concluded that the Texas law was created not to prevent people from burning the flag but from burning the flag in a way the state doesn’t like. The law was preventing political speech – the very speech the first amendment was created to protect.
“It is poignant but fundamental that the flag protects those who hold it in contempt.” -Justice Brennan (491 U.S. 397)
The court concluded that preserving the symbol of the flag is important but not at the cost of the freedom the flag stands for.
“Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people- whether it be murder, embezzlement, pollution,or flag burning.”- Justice Stevens (491 U.S. 397)
The nine court members were not all in agreement with the ruling, however. Four of the nine members believed the flag’s place in American society was so sacred that Texas’ arguments were of a high enough government interest to satisfy strict scrutiny.
Justice Kennedy’s three main points of dissent:
- Burning the flag is considered so powerfully offensive as to cause a breach of the peace that 48 of the 50 states and Congress had created laws to make public burnings of the flag a criminal offense.
- Burning the flag wasn’t essential to convey Johnson’s message. He could have expressed himself otherwise and had a similar impact on his audience.
- This isn’t an issue of free speech at all but of desecration. The intended message behind burning the flag does not matter. Instead, what matters is the offensive message that had been received by the american people.
“And the rockets’ red glare, the bombs bursting in air,
gave proof thro’ the night that our flag was still there.
O say does that star-spangled banner yet wave
o’re the land of the free and the home of the brave?”- The United States National Anthem
Although their methods severely differed, with half of the court calling to protect the right to burn the flag and the other half urging to protect the flag from maltreatment, all the justices believed they were upholding the same value: the flag is a symbol worth protecting.
Texas v. Johnson (491 U.S. 397)
Boos v. Barry (485 U.S. 312)
United States v. O’Brien (391 U.S. 367)
West Virginia State Board of Education v. Barnette (319 U.S. 624)
Spence v. Washington (418 U.S. 405)
Key Players Infographic:
William Rehnquist by Wikimedia Commons user the United States Department of Justice employee used under Creative Commons Attribution 2.0 license
Anthony Kennedy by Wikimedia Commons user the United States Department of Justice employee used under Creative Commons Attribution 2.0 license
Justice White by Wikimedia Commons user the United States Department of Justice employee used under Creative Commons Attribution 2.0 license
Antonin Scalia by Wikimedia Commons user the United States Department of Justice employee used under Creative Commons Attribution 2.0 license
John Paul Stevens, SCOTUS photo portrait by wikimedia commons user Steve Petteway used under Creative Commons Attribution 2.0 license
Justice Blackmun by Wikimedia Commons user the United States Department of Justice employee used under Creative Commons Attribution 2.0 license
Sandra Day O’Connor by Wikimedia Commons user Sven Manguard used under Creative Commons Attribution 2.0 license Thurgood Marshall by Wikimedia Commons user Siebrand used under Creative Commons Attribution 2.0 license
US Supreme Court Justice William Brennan- 1976 official portrait by Wikimedia Commons user Tom used under Creative Commons Attribution 2.0 license
William Kunstler and Gregory Lee Johnson by Wikimedia Commons user Seidenstud used under Creative Commons Attribution 3.0 license.
Texas State Capital Building by Flickr user ed Schlpul under Creative Commons Attribution 2.0 license.
Flag Burning Ceremony Slidely:
Quietude by SoundCloud user Hugh Doolan used under Creative Commons Attribution 2.0 license
Boy Scouts Retire Flags by Flickr user Fort George G. Meade Public Affairs office’s photostream used under Creative Commons Attribution 2.0 license
PPC ph-so-10-FlagRetirement by Flickr user Fort George G. Meade Public Affairs office’s photostream used under Creative Commons Attribution 2.0 license
Ceremony by Flickr user Todd Ehlers used under Creative Commons Attribution 2.0 license