Tuesday, March 21st 1989, with a 5-4 vote, the United States Supreme Court has ruled in favor of Gregory Lee Johnson’s civil liberties and said that his constitutional liberties were indeed violated as a result of his arrest and fine. The United States Supreme Court claimed that the Johnson’s expression of burning the flag is protected and legal according to the United States Constitution. This now pushes future rulings in that now burning an American flag is a kind of symbolic or political speech and is protected from criminal prosecution by the First Amendment.
This appeal, brought by Johnson, was brought about when he stated that the arrest sparked by flag burning activities by stating that the Dallas police department had violated his 1st Amendment rights. Being an American means that your 1st Amendment right preserves and protects the right of speech and expression. Another aspect that was included in this appeal, is that Johnson believed that the state law was not appropriate because the government cannot define what a “respected” object is.
The actual flag burning occurred at the Republican National Convention to protest the policies of President Ronald Reagan and some Dallas based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured, although several people were very offended by the flag burning.
The court concluded that the State could not criminally sanction flag burning in order to preserve the flag as a symbol of national unity. It also said that the statute did not meet the State’s goal of preventing breaches of the peace. The court also said that if this action would have worked as a such a serious disturbance than the 1st Amendment would not protect Johnson or anyone else who would follow these actions.
The majority of the Court, according to Justice William Brennan, agreed with Johnson and held that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment. The majority (5-4), noted that freedom of speech protects actions that society may find very offensive, but society’s outrage alone is not justification for the suppression of free speech. If these actions prevented society from having their opinions be heard or taken in the same light, the law would preside on the other side of the argument.
In particular, the majority (5-4) noted that the Texas law discriminated upon viewpoint, even though the law punished actions, such as flag burning, that might arouse anger in others. The law specifically exempted 1st Amendment users from prosecution actions that were respectful of venerated objects, for example: burning and burying a worn-out flag. The majority said that the government could not discriminate in this manner based upon viewpoint.
Justice Brennan delivered the opinion of the court where he dove deeper into the background of the situation and the final opinion.
“The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage “die-ins” intended to dramatize the consequences of nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protester who had taken it from a flagpole outside one of the targeted buildings.” Justice Brennan
He then continued on to say –
“The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protesters chanted, “America, the red, white, and blue, we spit on you.” After the demonstrators dispersed, a witness to the flag burning collected the flag’s remains and buried them in his backyard. No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning.”
To conclude the courts opinion, Justice Brennan then stated –
“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.”
In Concurrence with Justice Brennan’s stated opinion, Justice Kennedy wrote that he was not writing to “qualify” Justice Brennan’s quote, rather –
“I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks. The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours”
What we as Americans must keep in mind is that that both Justice Brennan and Justice Kennedy belong to two separate political parties. A common argument to the way justices place their opinion may lie in their past experiences, but should not and cannot lie with their political agenda in mind. This case, for instance, is one that had both sides of the political spectrum working together to interpret the law and then make a decision based off of facts of the case – nothing else.
But where there is concurrence, there must be dissent. Both Justice Rehnquist and Justice Stevens fell under this category. Justice Rehnquist went deeper into various places in time where the United States flag was used as a symbol of national pride and deeper symbolic’s. Because of this, he said –
“With the exception of Alaska and Wyoming, all of the States now have statutes prohibiting the burning of the. Most of the state statutes are patterned after the Uniform Flag Act of 1917, which in provides:
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”.
Justice Stevens then said, “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 fleurs-de-lis and the tricolor both symbolized “nationhood and national unity,” but they had vastly different meanings. 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 a 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.”
This case may very well bring a much larger conversation here in the United States, and each and every American will have to make a decision. Whatever their choice is on this matter, the fact that the Supreme Court has given their opinion is something to be highly considered. More information in regards to this ruling to follow.