484 Street Law: Community College Edition The Case of . . . The Flag Burning While the Republican National Convention was taking place in Dallas in 1984, Gregory Lee Johnson participated in a political demonstra- tion. Demonstrators marched through Dallas streets, stopping at several locations to stage "die-ins" intended to dramatize their opposition to nuclear weapons. One demonstrator took an American flag from a flagpole and gave it to Johnson. The demonstration ended in front of the Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, protesters chanted, "America, the red, white, and blue, we spit on you." There were no injuries or threats of injury during the demonstration. Of the hundred or so demonstrators, only The American flag Johnson was arrested. He was charged under a Texas criminal statute that prohibited desecration of a venerated object (including the First Amendment. The First Amendment lit- monuments, places of worship or burial, or a erally protects speech itself. However, this Court state or national flag) "in a way that the actor has long recognized that First Amendment knows will seriously offend one or more persons protection does not end with the spoken or likely to observe or discover his action." written word. While we have rejected the idea At Johnson's trial, several witnesses testified that virtually all conduct can be labeled speech that they had been seriously offended by the flag and so is protected by the First Amendment, we burning. He was convicted, sentenced to one have recognized conduct as symbolic speech year in jail, and fined $2,000. The case was when the actor intended to convey a particular appealed to the U.S. Supreme Court. message and there was a great likelihood that those viewing the conduct would understand the Problem 37.9 message Assume that you are a justice on the U.S. In this case, Johnson's conduct is similar to Supreme Court. Study the two opinions that fol- conduct protected as symbolic speech in our low, decide which you would vote for, and in a earlier cases. However, the First Amendment letter to the editor of a national newspaper, give does not provide an absolute protection for the reasons for your decision. speech. This Court will analyze the Texas law, along with the facts of the case, to determine whether the state's interest is sufficient to Opinion A justify punishing Johnson's action. Johnson argues that his burning of the flag In earlier cases, we upheld the conviction should be protected as symbolic speech under of a protester who burned his draft card. WeLaw. Community College Edition reached that decision because the government had an important interest in requiring that everyone age 18 and older carry a draft card. In believe that the federal low and the laws in the that case we did not punish the protester's 48 states that prohibit burning of the flag are in speech but rather his illegal act (burning his conflict with the First Amendm Amendment . Although ear - ft card). However, we have held that freedom liet cases have protected speech and even some of speech was violated when individuals were symbolic speech related to the flag, none of our arrested for displaying a flag decorated with a decisions has ever protected the burning of a flag. peace symbol constructed of masking tape and The First Amendment is dment is designed to protect or wearing pants with a small flag sewn into the the expression of ideas. Indeed, Johnson could seat . have denounced the flag in public or even burned it in private without violating the Texas In the Johnson case, the state argues that law. In fact, other methods of protest were used it has two important interests: preventing a and permitted at the demonstration. The Texas breach of the peace and preserving the flag as a statute did not punish him for the ideas that he symbol of nationhood and national unity. The conveyed but rather for the conduct he used to first interest is not involved in this case because convey his message. Requiring that Johnson use there was no breach of the peace or even a some method other than flag burning to convey threat of such a breach . his message places a very small burden on free The state's other argument-the preservation expression. of the flag as a symbol of nationhood and We have never held that speech rights are absolute. If Johnson had chosen to spray-paint national unity-misses the major point of this graffiti on the Washington Monument, there is Court's earlier First Amendment decisions: the no question that the government would have the government may not prohibit expression simply power to punish him for doing so. The flag sym- because society finds the ideas presented to be bolizes more than national unity. It symbolizes offensive or disagreeable. Johnson was prose- to war veterans, for example, what they fought cuted for burning the flag to express an idea-his for and what many died for. It also symbolizes dissatisfaction with the country's policies. His our shared values such as freedom, equal oppor conviction must be reversed because his act tunity, and religious tolerance. If the great ideas deserves First Amendmentprotection as symbolic behind our country are worth fighting for-and speech. The governmenthas not provided suffi- history demonstratesthat they are-then the flag cient justification for punishing his speech. that uniquely symbolizes the power of those ideas is worth protecting from burning. The con- Opinion B viction should be affirmed. For more than 200 years, the American flag has occupied a unique position as the symbol of the nation. Regardless of their own political beliefs, millions of Americans have an almost Landmark mystical reverence for the flag. Both Congress Supreme Court Cases and the states have enacted many laws Visit the Landmark Supreme Court Cases prohibiting the misuse and mutilation of the Website at landmarkcases.org for information American flag. With the exception of Alaska and and activities about Texas V. Johnson. Wyoming, all the states have specific laws pro- hibiting the burning of the flag. We do not