Flag Burning Ruled as Symbolic Speech Protected by First Amendment

According to a 5-4 decision made by the U.S. Supreme Court, flag burning is symbolic speech protected by the Free Speech Clause of the First Amendment. This decision was made after review of a case stemming from an incident during the 1984 Republican National convention in Dallas, Texas.

Gregory Lee Johnson was outside the convention center protesting the policies of the Reagan administration and some Dallas-based corporations. Johnson burned an American flag while protesters chanted.

Johnson was convicted of desecration of a venerated object in violation of a Texas statute and a state court of appeals affirmed. He was sentenced to one year in prison and fined $2,000. However, when the case was reviewed by the Texas Court of Criminal Appeals they held that the state couldn’t punish Johnson for burning the U.S. Flag and reversed his conviction. Because of the conviction, then the reverse of the conviction, the U.S. Supreme Court was to review the case and write an opinion.

The case divided the nine Supreme Court justices much as the issue of flag burning divided the rest of the nation.

Justice Brennan writes the first opinion that is disagreeing with the conviction and is joined by justices Marshall, Blackmun, Scalia and Kennedy. 

He wrote first, “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.”

According to his opinion, there are several reasons why the conviction of Johnson is unjust.

“Recognizing that the right to differ is the centerpiece of our First Amendment freedoms… the flag’s special status was not endangered by Johnson’s conduct,” the opinion wrote as the overall reasons.

The opinion then went on to state Johnson’s personal reasons for his actions. Writing his statement exactly, “the American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at this time. It’s quite a juxtaposition.”

The opinion then wrote about the State’s reasons for convicting him; “the State offers two separate interests to justify this conviction: preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity.”

Next, the breakdown of State’s argument.

The opinion writes in contrast to State’s argument that “no reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.”

Justice Brennan goes on breaking down State’s argument; he writes, “according to Texas, if one physically treats the flag in a way that would tend to cast doubt on either the idea that nationhood and national unity are the flag’s referents or that national unity actually exists, the message conveyed thereby is a harmful one, and therefore may be prohibited. 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 continues his disagreement with the conviction of Johnson and begins concluding the opinion; “the constitutionally guaranteed ‘freedom to be intellectually…diverse or even contrary’ and the ‘right to differ as to things that touch the heart of the existing order’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.”

This U.S. Supreme Court opinion was concluded in final, “Johnson was convicted for engaging in expressive conduct. 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 judgment of the Texas Court of Criminal Appeals is therefore Affirmed.”

Thus, it was found by five justices that flag burning is symbolic speech protected by the Free Speech Clause of the First Amendment. 

The dissenting opinion, that protected the conviction of Johnson and found flag burning a criminal conduct, was written by Chief Justice Rehnquist and was joined by justices O’Connor, White and Stevens.

The dissenting opinion wrote its main argument, that “no other American symbol has been as universally honored as the flag.”

Justice Rehnquist pays enormous tribute to fallen soldiers, reflecting that the flag stands for them and it shouldn’t be dishonored by any American.

The dissenting opinion continues by writing, “the public act of desecration of our flag tends to undermine the morale of American trips. That this finding is true can be attested by many Members who have received correspondence from servicemen expressing their shock and disgust of such conduct.”

Continuing on that tribute, Rehnquist states that “the flag symbolizes the Nation in peace as well as war… Both Congress and the State have enacted numerous laws regulating misuse of the American flag… No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign or shield.”

The dissenting opinion went on about how the flag should be protected and under no circumstances should be dishonored. With that being the main and only argument for the dissenting opinion, opting that Johnson should continue to be punished,  Rehnquist concluded by writing that, “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.”

Even with conclusion of the dissenting opinion by Chief Justice Rehnquist, the overall decision of the U.S. Supreme Court was 5-4 in that Johnson’s action of burning the flag is considered symbolic speech protected by the Free Speech Clause of the First Amendment.

This case will remain one of the most dividing cases of both the nation and of the nine Supreme Court Justices; it will also remain as a vital example for the First Amendment right of symbolic speech and actions for the American people.






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