U.S. Supreme Court Strikes Down Flag Desecration Law Summary

  • Last updated on November 10, 2022

The decision of the U.S. Supreme Court that flag burning as a form of political protest was protected under the First Amendment guarantee of freedom of speech sparked a continuing debate about flag desecration and civil liberties.

Summary of Event

In 1984, the Republican National Convention was held in Dallas, Texas. As part of a political demonstration against the renomination of President Ronald Reagan and the policies of certain locally based corporations, Gregory Lee Johnson burned an American flag as protesters chanted, “America, the red, white, and blue, we spit on you.” During the event, no one was physically harmed, although witnesses later declared that they were seriously offended by the action. Johnson was arrested and convicted under a Texas statute that prohibited desecration of a venerated object. The intermediate state court of appeals affirmed the conviction, but the Texas Court of Criminal Appeals (the highest appellate court for criminal cases in Texas) overturned it on the basis that Johnson’s conduct was symbolic speech and protected by the First Amendment to the U.S. Constitution. The U.S. Supreme Court granted certiorari to consider Texas’s appeal because of that constitutional issue. Supreme Court, U.S.;flag desecration Flag desecration laws [kw]U.S. Supreme Court Strikes Down Flag Desecration Law (June 21, 1989) [kw]Supreme Court Strikes Down Flag Desecration Law, U.S. (June 21, 1989) [kw]Court Strikes Down Flag Desecration Law, U.S. Supreme (June 21, 1989) [kw]Flag Desecration Law, U.S. Supreme Court Strikes Down (June 21, 1989) [kw]Desecration Law, U.S. Supreme Court Strikes Down Flag (June 21, 1989) [kw]Law, U.S. Supreme Court Strikes Down Flag Desecration (June 21, 1989) Texas v. Johnson (1989) Supreme Court, U.S.;flag desecration Flag desecration laws [g]North America;June 21, 1989: U.S. Supreme Court Strikes Down Flag Desecration Law[07290] [g]United States;June 21, 1989: U.S. Supreme Court Strikes Down Flag Desecration Law[07290] [c]Laws, acts, and legal history;June 21, 1989: U.S. Supreme Court Strikes Down Flag Desecration Law[07290] [c]Civil rights and liberties;June 21, 1989: U.S. Supreme Court Strikes Down Flag Desecration Law[07290] Johnson, Gregory Lee Brennan, William J. Rehnquist, William H. Stevens, John Paul

Justice William J. Brennan, joined by Justices Thurgood Marshall, Marshall, Thurgood Harry A. Blackmun, Blackmun, Harry A. Antonin Scalia, Scalia, Antonin and Anthony Kennedy Kennedy, Anthony in the majority opinion, held that the flag burning fell within the protection of the First Amendment as expressive conduct and overturned the conviction. The Court noted that the Texas statute controlled only physical conduct with the flag and not the written or spoken word, so Johnson was not convicted for his words. Although the First Amendment literally addresses only speech, in prior cases the Court had recognized that communicative or expressive elements of conduct might bring that conduct under the protection of the First Amendment. The Court’s established two-pronged test for deciding whether the conduct fell under the First Amendment was, first, whether the actor had the specific intent to convey a message through the conduct and, second, whether the observers were likely to understand the message. Clearly, both prongs were met in that the spectators unequivocally understood Johnson’s message of disdain, and, in fact, the state of Texas conceded in oral argument that Johnson’s act was expressive conduct.

The state argued, however, that its independent and substantial governmental interest in preventing disorder and disturbances of the peace that could result from flag burning should override any expressive aspect of the conduct. Justice Brennan noted that the Court in prior decisions had decided that governments are freer to regulate expressive conduct than they are to regulate the oral or written word under the First Amendment and that when speech and nonspeech are combined into one act, important government objectives may allow limited regulation of expression. In the case of Johnson’s action, however, no disorder did erupt, and other state statutes prohibited breaches of the peace, so the argument was not persuasive.

The state of Texas also asserted its interest in protecting the flag as a symbol. However, Brennan pointed out that an integral part of the symbolism of the flag is its representation of cherished freedoms such as speech and political dissent and that government may not suppress expression solely because the ideas are unpopular or even offensive. The First Amendment protections of political discourse and dissent trump the government’s claim in this instance.

Chief Justice William H. Rehnquist, joined by Justices Byron White White, Byron and Sandra Day O’Connor O’Connor, Sandra Day in dissent, drew heavily from history and literature to illustrate the flag’s importance and its unique position as the principal symbol of the nation. Rehnquist stated, “Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have.” Within that perspective, the dissent noted, flag burning is an egregiously offensive method of political expression and should not be protected, especially given that political dissidents such as Johnson have alternative means to express their opinions. Government has the right to proscribe conduct that is repugnant to the majority of people, Rehnquist argued; to protect flag burning as expressive conduct is an unjustified and inappropriate expansion of the First Amendment.

Justice John Paul Stevens, a World War II veteran, noted his staunch opposition to any and all forms of flag desecration, especially flag burning. Just as the government has the right to punish those who spray graffiti on public property or attach advertisements to national monuments, it has the obligation to take action against those who attack the corporal flag and the principles it represents, Stevens asserted. Johnson was punished for the physical act he committed, not the ideas he expressed, and Stevens would sustain the conviction.

Significance

The American flag did not achieve prominence as a preeminent symbol of the nation until after the Civil War. There were no restrictions on the use of the flag: Veterans’ groups printed battle locations on the flag, politicians imprinted their images and slogans on the flag during campaigns, and commercial entities employed the flag in advertisements or as adornments on sundry merchandise. Following the Civil War, veterans’ groups and patriotic-hereditary organizations initiated efforts to protect the flag from unseemly commercial uses, and a number of states enacted laws concerning flag desecration at the end of the nineteenth century. These statutes often were challenged successfully by the commercial interests on the basis that their private property rights were infringed. However, in 1907, the U.S. Supreme Court upheld the constitutionality of flag desecration laws when it decided Halter v. Nebraska, Halter v. Nebraska (1907) a case involving a bottle of beer with an American flag on the label. First Amendment (U.S. Constitution) Texas v. Johnson (1989)

During the same period, the employment of the American flag as a tool to force shows of loyalty or as a tool of political protests was becoming more common. Instances of prosecution for flag abuse were rare even during World Wars I and II, but protests against U.S. involvement in the Vietnam War that included physical abuse of the American flag reignited the controversy and resulted in the first national law forbidding such abuse, the Federal Flag Desecration Act of 1968. However, court cases involving either state or federal statutes and the First Amendment’s freedom of speech guarantee produced incongruous decisions, and it was not until Texas v. Johnson that the Supreme Court, previously having avoided the constitutional question, finally provided definitive guidelines.

The Court’s decision in Texas v. Johnson generated a firestorm of controversy that continued into the twenty-first century. In response to the decision, Congress enacted the Flag Protection Act of 1989, which was subsequently struck down by the Court in United States v. Eichman (1990). United States v. Eichman (1990) That decision, in turn, spurred several attempts by Congress to pass the Flag Desecration Amendment. A by-product of the dispute was an increase in attacks on the legitimacy of the Supreme Court—that is, the confidence of the American people in the Court and the esteem in which the institution is held. Public opinion polls indicated that the Court’s decisions concerning flag desecration negatively affected perceptions of the Court, an institution that is heavily dependent on public perceptions of its legitimacy because it lacks both the power of the purse and the power of the sword. Texas v. Johnson (1989) Supreme Court, U.S.;flag desecration Flag desecration laws

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">Gibson, James L., Gregory A. Calderia, and Lester Kenyatta Spence. “Measuring Attitudes Toward the United States Supreme Court.” American Journal of Political Science 47 (April, 2003): 354-367. Presents the findings of a study of public opinion concerning the short-term and long-term attitudes of confidence toward the Supreme Court.
  • citation-type="booksimple"

    xlink:type="simple">Goldstein, Robert Justin. Flag Burning and Free Speech: The Case of Texas v. Johnson. Lawrence: University Press of Kansas, 2000. Provides a thorough account of the facts of the case and the context of the decision, including public and political reactions. Written for a general audience.
  • citation-type="booksimple"

    xlink:type="simple">_______. Saving “Old Glory”: History of the American Flag Desecration Controversy. Boulder, Colo.: Westview Press, 1995. Provides an in-depth review of legislative, judicial, and other materials relating to flag desecration statutes and controversies.
  • citation-type="booksimple"

    xlink:type="simple">Grosskopf, Anke, and Jeffery J. Mondak. “Do Attitudes Toward Specific Supreme Court Decisions Matter? The Impact of Webster and Texas v. Johnson on Public Confidence in the Supreme Court.” Political Research Quarterly 51 (September, 1998): 633-654. Analyzes public opinion following two controversial Supreme Court decisions to examine the linkage between specific cases and support for the Court as an institution.

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