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After burning the U.S. flag as an act of political protest, Gregory Lee
Johnson was convicted of desecrating a flag in violation of Texas law.
The state of Texas, after losing in lower courts, appealed to the U.S. Supreme
Court, which had to decide whether Johnson's conviction was consistent with the
First Amendment's protection of freedom of speech. By a narrow 5-to-4
vote, the Court again held that the Texas law was unconstitutional.
Delivering the opinion of the Court, Justice Brennan argues that the state
cannot "prescribe what shall be orthodox" by punishing symbolic
actions like flag burning. The way to preserve the flag's special role in
our national life, he argues, is not to punish those who feel differently about
this symbol but to persuade them that they are wrong. In their separate
dissents, Justice Rehnquist and Justice Stevens reject the idea that the flag is
just another symbol, toward which it would be unconstitutional to require
minimal respect.
Justice Brennan: As in Spence [v. Washington,
a 1974 case on expressive conduct], "[w]e are confronted with a case of prosecution
for the expression of an idea through activity," and "[a]ccordingly,
we must examine with particular care the interests advanced by [petitioner] to support
its prosecution."...Johnson was not, we add, prosecuted for his expression
of just any idea: he was prosecuted for his expression of dissatisfaction with
the policies of this country, expression situated at the core of our First
Amendment values.
Moreover, Johnson was prosecuted because he knew that his politically charged
expression would cause "serious offense." If he had burned the flag as
a means of disposing of it because it was dirty or torn, he would not have been
convicted of flag desecration under this Texas law: federal law designates
burning as the preferred means of disposing of a
flag "when it is in such condition that it is not longer a fitting emblem
for display."...
If we are 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--as where, for example, a person ceremoniously burns a dirty flag--we
would be saying that when it comes to impairing the flag's physical integrity,
the flag itself may be used as a symbol--as a substitute for the written or
spoken word or a "short cut from mind to mind"--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...
We are fortified in today's conclusion by our conviction that forbidding
criminal punishment for conduct such as Johnson's will not endanger the special
role played by our flag or the feelings it inspires. To paraphrase Justice
[Oliver Wendell] Holmes, we submit that nobody can suppose that this one gesture
of an unknown man will change our nation's attitude towards its flag...Indeed,
Texas's argument that the burning of an American flag "'is an act having a
high likelihood to cause a breach of peace,'"...and its statute's implicit
assumption that physical mistreatment of the flag will lead to 'serious
offense,' tend to confirm that the flag's special role is not in danger; if it
were, no one would riot or take offense because a flag had been burned.
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 then that they are
wrong. "To courageous, self-reliant men, with confidence in the power
of free and fearless reasoning applied through the processes of popular
government, no danger flowing from speech can be deemed clear and present,
unless the incidence of the evil apprehended is so imminent that it may befall
before there is opportunity for full discussion. If there be time to
expose through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not enforced
silence."...And, precisely because it is our flag that is involved, one's
response to the flag-burner may exploit the uniquely persuasive power of the
flag itself. We can imagine no more appropriate response to burning a flag
than waving one's own, no better way to counter a flag-burner's message than by
saluting the flag that burns, no surer means of preserving the dignity even of
the flag that burned than by--as one witness here did--according its remains a
respectful burial. We do not consecrate the flag by punishing its
desecration, for in doing so we dilute the freedom that this cherished emblem
represents.
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.
Justice Rehnquist, Dissenting:
In holding this Texas statute unconstitutional, the
court ignores Justice Holmes's familiar aphorism that "a page of history is
worth a volume of logic."...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...
In the First and Second World Wars, thousands of our
countrymen died on foreign soil fighting for the American cause. At Iwo Jima in
the Second World War, United States Marines fought hand-to-hand against
thousands of Japanese. By the time the Marines reached the top of Mount
Suribachi, they raised a piece of pipe upright and from one end fluttered a
flag. That ascent had cost nearly 6,000 American lives...
During the Korean War, the successful amphibious landing of
American troops at Inchon was marked by the raising of an American flag within
an hour of the event...
The government is simply recognizing as a fact the profound regard
for the American flag created by that history when it enacts statues prohibiting
the disrespectful public burning of the flag.
The court concludes its opinion with a regrettably patronizing
civics lecture, presumably addressed to member of both houses of Congress, the
members of the 48 state legislatures that enacted prohibitions against flag
burning and the troops fighting under that flag in Vietnam who objected to its
being burned: "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 court's role as the final expositor of the Constitution is
well established, but its role as a platonic guardian admonishing those
responsible to public opinion as if they were truant schoolchildren has no
similar place in our system of government. The cry of "no taxation
without representation" animated those who revolted against the English
crown to found our nation--the idea that those who submitted to government
should have some say as to what kind of laws would be passed. 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.
Our Constitution wisely places limits on powers of legislative
majorities to act, but the declaration of such limits by this court "is, at
all times, a question of much delicacy, which ought seldom, if ever, to be
decided in the affirmative, in a doubtful case."...Uncritical extension of
constitutional protection to the burning of the flag risks the frustration of
the very purpose for which organized governments are instituted. The court
decided that the American flag is just another symbol, about which not only must
opinions pro and con be tolerated, but 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, Dissenting: As the court
analyzes this case, it presents the question whether the state of Texas, or
indeed the federal government, has the power to prohibit the public desecration of the
American flag. The question is unique. In my judgment, rules that
apply to a host of other symbols, such as state flags, armbands or various
privately promoted emblems of political or commercial identity, are not
necessarily controlling. Even if flag burning could be considered just
another species of symbolic speech under the logical application of the rules
that the court has developed in its interpretation of the First Amendment in
other context, this case has an intangible dimension that makes those rule
inapplicable.
A country's flag is a symbol of more than "nationhood and national
unity."...It also signifies the ideas that characterize the society that
has chosen that emblem as well as the special history that has animated the
growth and power of those ideas. The fleur-de-lis and the tricolor both
symbolized "nationhood and national unity," but they had vastly
different meaning. The message conveyed by some flags--the swastika, for
example--may survive long after it has outlived its usefulness as a symbol of
regimented unity in the particular nation.
So it is with the American flag. It is more than a proud symbol of the
courage, the determination and the gifts of nature that transformed 13 fledgling
colonies into a world power. It is a symbol of freedom, of equal
opportunity, of religious tolerance and of goodwill for other peoples who share
our aspirations. The symbol carries its message to dissidents both at home
and abroad who may have no interest at all in our national unity or survival.
The value of the flag as a symbol cannot be measured. Even so, I have
no doubt that the interest in preserving that value for the future is both
significant and legitimate. Conceivably that value will be enhanced by the
court's conclusion that our national commitment to free expression is so strong
that even the United States as ultimate guarantor that freedom is without power
to prohibit the desecration of its unique symbol. But I am unpersuaded...
The case has nothing to do with "disagreeable ideas.",...it
involves disagreeable conduct that, in my opinion, diminishes the value of an
important national asset.
The court is therefore quite wrong in blandly asserting that respondent
"was prosecuted for his expression of dissatisfaction with the policies of
this country, expression situated at the core of our First Amendment
values."...Respondent was prosecuted because of the method he chose to
express his dissatisfaction with those policies. Had he chosen to spray
paint--or perhaps convey with a motion picture projector--his message of
dissatisfaction on the facade of the Lincoln Memorial, there would be no
question about the power of the government to prohibit his means of
expression. The prohibition would be supported by the legitimate interest
in preserving the quality of an important national asset. Though the asset
at stake in this case is intangible, given its unique value, the same interest
supports a prohibition on the desecration of the American flag.
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, and 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.
I respectfully dissent.
* 57 L. W. 4770 (1989).
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