The American Flag: Free Speech And The Right To Burn

The topic of burning the American flag as a form of protest has been a highly controversial issue in the United States for decades. While many consider it a desecration of the nation's most sacred symbol, the Supreme Court ruled in 1989 that the First Amendment protected flag burning as symbolic speech. This landmark decision in Texas v. Johnson affirmed that the government could not punish flag burning in service of protecting national symbols.

The First Amendment protects flag burning as symbolic speech

Johnson appealed his conviction, arguing that his actions were "symbolic speech" protected by the First Amendment. The Supreme Court agreed to hear his case and, in a 5-4 decision, ruled in his favour, concluding that flag burning constitutes a form of symbolic speech that is protected by the First Amendment. Justice William Brennan, who wrote the majority decision, stated that Johnson's actions were "expressive conduct" and that the state's interest in preventing breaches of the peace did not justify his conviction.

The Court's decision in Texas v. Johnson set a precedent for protecting symbolic speech and expressive conduct under the First Amendment. The Court noted that while society may find flag burning offensive, outrage alone is not a justification for suppressing free speech. The majority also highlighted that the Texas law discriminated based on viewpoint, punishing actions that might arouse anger while exempting respectful conduct towards venerated objects.

The battle over flag desecration laws has a long history in the United States, dating back to the early 20th century. In 1907, the Court in Halter v. Nebraska upheld a state law prohibiting the sale of beer with flag labels on the bottles. In response to Vietnam War protests, Congress approved the Federal Flag Desecration Law in 1968, making it illegal to "knowingly" cast "contempt" upon the American flag through acts such as burning or mutilation. However, the Court's decision in Texas v. Johnson and subsequent cases have established that flag burning is a form of symbolic speech protected by the First Amendment, despite ongoing attempts to pass a constitutional amendment authorizing punishment for flag desecration.

The Supreme Court ruled flag burning cannot be punished to protect national symbols

On June 21, 1989, the United States Supreme Court ruled in a 5-4 vote that protesters have the right to burn the American flag, in a landmark First Amendment decision. The case in question was Texas v. Johnson, where protester Gregory Lee Johnson burned a flag at the Republican National Convention in Dallas in 1984. Johnson was tried and convicted under a Texas law outlawing flag desecration, and sentenced to one year in jail and a $2,000 fine.

The majority opinion, written by Justice William Brennan, argued that Johnson's actions were symbolic speech, political in nature, and could be expressed even at the expense of a national symbol. Brennan wrote:

> 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.

Justice Anthony Kennedy, who joined the majority, wrote:

> 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.

In response to the Johnson decision, which only applied to the Texas flag-desecration law, Congress passed a national anti-flag burning law called the Flag Protection Act of 1989. However, in 1990, in United States v. Eichman, the Supreme Court struck down that law as unconstitutional as well, in another 5-4 decision. Justice William Brennan wrote:

> 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.

The Supreme Court's rulings on flag burning have been highly controversial, and Congress has made several attempts to amend the Constitution to prohibit flag desecration, most recently in 2006, with the effort failing by one vote in the Senate.

The Texas v. Johnson case upheld the right to burn the American flag

On June 21, 1989, the United States Supreme Court ruled in favour of protesters' right to burn the American flag in a landmark First Amendment decision. The case in question was Texas v. Johnson, which saw the Court vote 5-4 in favour of protester Gregory Lee Johnson, who had burned the flag during a demonstration at the 1984 Republican National Convention in Dallas, Texas. Johnson's actions were deemed to be symbolic and political in nature, and therefore protected by the First Amendment, even though they involved desecrating the national symbol.

In writing the majority decision, Justice William Brennan stated that "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." Justices Anthony Kennedy, Thurgood Marshall, Harry Blackmun, and Antonin Scalia joined the majority.

The Texas v. Johnson case centred on the question of whether flag burning constituted expressive conduct, thus permitting Johnson to invoke the First Amendment. The Court of Criminal Appeals overturned Johnson's initial conviction, agreeing that his actions were indeed expressive conduct and therefore protected by the First Amendment. The state of Texas argued that it had a legitimate interest in preserving the flag as a symbol of national unity and that Johnson's use of this symbol, rather than the idea he sought to convey, was the reason for his conviction. However, the Court ultimately ruled that the state's restriction on Johnson's expression was content-based and, therefore, subject to "exacting scrutiny".

The decision in Texas v. Johnson sparked intense debate, with some members of Congress seeking to amend the Constitution to permit restraints on flag desecration. In response to the ruling, Congress passed the Flag Protection Act of 1989, which was subsequently struck down as unconstitutional by the Supreme Court in United States v. Eichman in 1990. Despite the controversy and ongoing efforts to prohibit flag desecration, the Texas v. Johnson case upheld the right to burn the American flag as a form of protected political expression under the First Amendment.

The Flag Protection Act of 1989 was passed in response to Texas v. Johnson

The Flag Protection Act of 1989 was passed in response to the Supreme Court's decision in Texas v. Johnson, which held that flag burning was protected under the First Amendment. The case centred around Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade, who burned the American flag during a political demonstration in Dallas, Texas, in 1984. Johnson was initially convicted of desecrating a venerated object under state law and sentenced to one year in prison and a $2,000 fine. However, the Texas Court of Criminal Appeals reversed this decision, holding that the state could not criminally sanction flag desecration as it was protected symbolic speech under the First Amendment.

The Supreme Court affirmed the Texas Court of Criminal Appeals' decision, voting 5-4 in favour of Johnson. The majority opinion, written by Justice William Brennan, held that Johnson's actions were a form of symbolic speech that was political in nature and could be expressed, even if it was at the expense of the national symbol and to the affront of those who disagreed. Justice Brennan stated that Johnson's conduct did not threaten to disturb the peace and that the state's interest in preserving the flag as a symbol of nationhood and national unity did not justify his criminal conviction for engaging in political expression.

The Flag Protection Act of 1989 was passed by Congress in response to the Johnson decision, making flag burning a federal crime. However, this law was also struck down by the Supreme Court in United States v. Eichman (1990) as unconstitutional, again on First Amendment grounds.

The battle over flag desecration laws has a long history in the United States, dating back to the Court's decision in Halter v. Nebraska (1907), where it upheld a state law prohibiting the use of flag labels on beer bottles. In 1968, following protests during the Vietnam War, Congress approved the Federal Flag Desecration Law, making it illegal to "knowingly" cast "contempt" on the flag through acts such as burning or trampling. However, the Court moved towards protecting flag burning as a form of symbolic speech in Spence v. Washington (1974), where it held that a person couldn't be convicted for putting a peace sign on an American flag.

The Johnson decision in 1989 was a landmark ruling that affirmed the right to burn the American flag as a form of protected symbolic speech under the First Amendment. However, it remains a controversial issue, with Congress attempting as recently as 2006 to amend the Constitution to prohibit flag desecration.

Congress has tried and failed to pass laws to outlaw flag desecration

In response to the Johnson decision, Congress passed a national anti-flag burning law called the Flag Protection Act of 1989. However, in 1990, in United States v. Eichman, the Court struck down that law as unconstitutional as well, in another 5-4 decision.

Since then, Congress has tried several times to amend the Constitution to prohibit flag desecration. The most recent proposal was in 2006; the amendment passed the House by a vote of 286-130, but failed by one vote, 66-34, in the Senate.

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