Can You Burn An American Flag? | Texas v. Johnson

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In episode 7 of Supreme Court Briefs, a dude named Johnson burns the American flag and the whole country seems to freak out. Does the First Amendment protect flag burning?

Check out cool primary sources here:
https://www.oyez.org/cases/1988/88-155

Additional sources used:
https://billofrightsinstitute.org/edu...

https://constitutioncenter.org/blog/a...

http://www.cnn.com/2006/POLITICS/06/2...

Reading Through History: The Great Supreme Court Cases

Dallas, Texas
August 22, 1984

Protesters marched through the streets, destroyed property, spray-painted walls, broke windows, and threw dirty diapers and beer cans just outside of the Republican National Convention. Someone stole an American flag from a flagpole from a downtown building. Eventually, that flag ended up in the hands of Revolutionary Communist Youth Brigade member Gregory Lee Johnson. At the height of the protests, Johnson poured kerosene on the flag and set it on fire. While the flag burned, he chanted stuff like “Red, white and blue, we spit on you, you stand for plunder, you will go under” and “Reagan, Mondale, which will it be? Either one means World War III.” Although no one got physically hurt because of it, some people who saw Johnson do this were pretty offended by it.

Soon after, police arrested him and charged him with violating a Texas law that said you can’t vandalize respected objects, if such action were likely to get people mad. A Texas court convicted Johnson and he was sentenced to one year in person and fined $2,000. He appealed his case to the Fifth Court of Appeals of Texas, but lost the appeal. He appealed again to the Texas Court of Criminal Appeals, and they actually overturned his conviction, saying the First Amendment to the Constitution protects flag burning as symbolic speech. It also argued that Johnson did not hurt or threaten anyone by burning the flag.

Texas was like nuh-uh, and it asked the Supreme Court to hear the case. The Supreme Court agreed, and they heard arguments on March 21, 1989. At first, the Court considered if the First Amendment protected non-speech acts, since this wasn’t about Johnson’s verbal communication. So basically, they wondered if the act of burning the American flag should be considered expressive conduct.

Ultimately, they determined it was. In a highly controversial decision, the Court ruled 5-4 in favor of Johnson. The Court said that Texas could not ban flag burning. They also argued that Texas’ law that said you can’t vandalize respected objects didn’t prevent disturbing the peace. In fact, another Texas law already existed to prevent disturbing the peace without targeting flag burning.

Justice William Brennan delivered the opinion, but I am going to quote Justice Anthony Kennedy, as he put it pretty well. He said, “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right 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.”

The court had two major dissents. The first, by Justices William Rehnquist, Byron White, and Sandra Day O’Connor, argued that the American flag had a “unique status” that should be protected from desecration. Rehnquist wrote, “The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have.”

Justice John Paul Stevens had a slightly different dissent. He argued it was more than about the flag being an important symbol. He argued that Johnson was only punished for how he expressed his opinion, not the opinion itself.

So basically, the decision automatically made laws in 48 of the 50 states invalid. However, just two weeks later, Congress passed the Flag Protection Act, which made it a federal crime to desecrate the American flag, kind of like a middle finger to the Supreme Court. But the Court had the last laugh. The same five person majority of justices struck down the law in the 1990 case United States v. Eichman. Since then, many in Congress have tried several times to pass an amendment outlawing flag burning, but each time they come up short.