Flag Burning. What follows is an excerpt from a Supreme Court decision on flag burning (Texas v. Johnson 491 U.S. 397 [1989]). In this case, a man named Johnson participated during the 1984 Republican National Convention in Dallas, Texas, in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. He was convicted of desecration of a venerated object in violation of a Texas statute, and the state court of appeals upheld the conviction. However, the Texas court of criminal appeals reversed the ruling, holding that the state could not punish Johnson for burning the flag in this situation because his action was expressive conduct protected by the First Amendment provisions protecting freedom of expression. The decision was appealed to the U.S. Supreme Court, which ruled in favor of Johnson.

Following is an excerpt from the majority opinion, which was authored by Justice William Brennan.

In regard to his value-based argument, answer the following questions:

1. What values does Justice Brennan affirm in this opinion?

2. What values does Brennan view as opposed to his position?

3. What criteria for evaluation does Brennan apply in the decision?

4. What is your own value position in regard to Brennan’s specific argument? Majority Opinion In TEXAS V. JOHNSON The State asserts an interest in preserving the flag as a symbol of nationhood and national unity . . . .

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 . . . The Texas law is thus not aimed at protecting the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments that cause serious offense to others . . . Whether Johnson’s treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct.

Texas argues that its interest [is] in preserving the flag as a symbol of nationhood and national unity . . .

Quoting extensively from the writings of this Court chronicling the flag’s historic and symbolic role in our society, the State emphasizes the “special place” reserved for the flag in our Nation . . . The State’s argument is not that it has an interest simply in maintaining the flag as a symbol of, no matter what it symbolizes;

indeed, if that were the State’s position, it would be difficult to see how that interest is endangered by highly symbolic conduct such as Johnson’s. Rather, the State’s claim is that it has an interest in preserving the flag as a symbol of and . . . 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 . . .

Texas’ focus on the precise nature of Johnson’s expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea. If we were 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 . . . 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 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 them that they are wrong . . . 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.