The United States has long stood for liberty and freedom, championing symbolic causes, the most prominent of which being that of free speech. The case of Texas v. Johnson (1989) is a Supreme Court decision that revolves around the act of flag burning—a symbolic gesture often considered offensive and disrespectful. We argue in favor of the Court's decision that flag burning is an action protected under the First Amendment to the Constitution.
The First Amendment to the Constitution, which states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" (U.S. Const. AMEND. I), is the centerpiece of this debate. Free speech, alongside symbolic speech, is protected by this Amendment. Flag burning, though potentially offensive to onlookers (another subject to be discussed soon), falls within the realm of protected speech. Just as burning draft cards during the Vietnam War was seen as a protest against military conscription, burning the flag serves as a form of symbolic protest against government policies or actions. By criminalizing flag burning, the government would stifle citizens’ rights to protest their actions in a certain way. The act is a form of symbolic speech, and as a result should be directly protected by the First Amendment to the Constitution.
In the Texas v. Johnson case, Gregory Lee Johnson burned an American flag outside the 1984 Republican National Convention in Dallas amid onlookers as a form of protest against certain policies of the Reagan administration. Johnson was arrested and convicted under a Texas state law, as well as 18 U.S.C. 700(a), that prohibited the desecration of “venerated objects,” including the American Flag due to it being a symbol of national unity. However, the Supreme Court, in a 5-4 decision, overturned Johnson's conviction, reinforcing flag desecration as a form of symbolic speech protected under the First Amendment.
The Supreme Court has before noted that “[i]f 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 v. Johnson, Brennan). Critics argue that protecting flag burning diminishes the sanctity of national symbols and disrespects the sacrifices made by those who fought for the country. Chief Justice Rehnquist himself states “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” (Texas v. Johnson, Rehnquist). While these concerns are valid, it is important to recognize that safeguarding free speech does not equate to endorsing the act of flag burning. Instead, it upholds the principle that the government should not have the authority to suppress certain forms of expression. The justices can all agree that flag burning is a malicious action that should be condemned—the matter in debate here is whether the government has power to restrict said action.
The effect upon the onlookers of the event is also noted. Justice Brennan, however, dismisses this, as no real physical or mental harm of any form is inflicted upon them. Brennan notes that “[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” (Texas v. Johnson, Brennan). What may serve as a form of protest for one could be turned as a sign of respect for another given appropriate actions and responses.
Chief Justice Rehnquist, Justice White, and Justice o’Connor join in the dissent, primarily focusing on the symbolic importance of the flag and the lack of political connotations carried with said flag. Chief Justice Rehnquist notes that “The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy” (Texas v. Johnson, Rehnquist), attempting to denounce flag burning as criminal action instead as a form of protest. However, Brennan notes that to punish flag burning would go against the very principles for which the flag stood for. He also notes “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.” (Texas v. Johnson, Brennan).
The Supreme Court’s decision that Johnson's conviction for flag desecration is inconsistent with the First Amendment holds certain merit, considering the nature of the action itself as well as potential connotations that Johnson’s burning of the American flag holds.
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