Flag
Burning is a Protected Right
by Sharon Cornet
HIS 303 – The American Constitution
Professor: Joe Niehaus
May 22, 2009
Gregory Lee Johnson was arrested for desecration (by burning) of the U.S. flag in
1984, at the Republican National Convention in Dallas, Texas. After appealing to the District Court, and losing,
Johnson appealed further to the state in the Texas Court of Criminal Appeals, and won. Texas appealed the case to the Supreme Court, in Texas
vs. Johnson (1989), and granted certiorari (a writ of review). The Supreme
Court, on a vote of 5 to 4, claimed that the Texas statute could not be upheld due to its
unconstitutional nature. Desecrating the
flag is, so far, protected under the First Amendment of free speech (symbolic speech). For the sake of civil rights in this country
remaining intact, it is important that the Bill of Rights and the Constitution are upheld
in legal cases into the future.
Although there are many opinions and debates regarding the burning of the U.S.
flag, the main question that has arisen from the public due to this landmark case has been
the great importance placed upon the flag, since it is the symbol of the United States,
and every day in schools, and at ball games, etc. people of all ages and backgrounds pay
their respects to the flag via the Pledge of Allegiance (to the flag of the United States
of America…). However, when it comes to
issues of law, and the Constitution, and namely the Bill of Rights, there is general
consensus that no matter how much U.S. citizens love the U.S. flag, their right to free
speech is paramount.
The right to wave the flag in feelings and
notions of patriotism and respect for the nation and its laws, or to burn the flag as a
symbol of disagreement with political aspects of how the country is being run, or any
other reason, is all protected under the First Amendment.
To require an Amendment to the Constitution to prohibit flag burning, and to
make it a crime, would be like destroying the Bill of Rights. It would be like putting the symbol of the flag
ahead of the constitutional rights of Americans, which would deny Americans their right to
free speech. Still yet, most Americans still
want an Amendment that is specifically aimed toward protecting the flag, while allowing
all other forms of free speech.
In the data analysis from a public survey (source: http://www.landmarkcases.org/texas/data_analysis.html) the results show a very high public desire
for protecting the U.S. flag (Survey I
results):
Men: 78%
Women: 83%
(plus
older generations have higher percentages than younger ones)
Highschool/less education: 86%
Some college:
80%
College
Graduates: 67%
Whites: 82%
Blacks: 71%
Republicans: 85%
Democrats: 75%
Conservative Democrats: 86%
Conservative Republicans: 84%
Moderate/Liberal Democrats: 72%
Moderate/Liberal
Republicans: 90%
Interestingly, the Survey II results showed that 64% of people desired an amendment for
anti-burning,
but if the question was phrased that such
an amendment would negatively affect freedom of speech, then 52% of the public opposed
anti-burning.
Court Decision
Texas vs. Johnson (1989) in the Supreme Court had this final affirmation
to the case:
“The Government may not prohibit the verbal or
nonverbal expression of an idea merely because society finds the idea offensive or
disagreeable, even where our flag is involved. Nor may a State foster its own view of the
flag by prohibiting expressive conduct relating to it, since the Government may not permit
designated symbols to be used to communicate a limited set of messages. Moreover, this
Court will not create an exception to these principles protected by the First Amendment
for the American flag alone. Pp. 410-422” (Brennan, 1989, ¶ (c)).
Ultimately, the Supreme Court used the Constitution as its basis for making the
final decision to protect freedom of speech under the First Amendment.
Americans rights to free speech continue to be protected under the First Amendment,
because Texas vs. Johnson was appealed by the state of Texas and affirmed by the Supreme
Court. Although other amendments have
continued to be put forward to protect the U.S. flag from being burned or desecrated, they
have not yet passed, except for one. Congress
passed the Flag Protection Act in 1989; however, one year later the Supreme Court declared
the Act as unconstitutional (in United States vs. Eichman) (The Amendment Process). For the sake of civil rights in this country
remaining intact, it is important that the Bill of Rights and the Constitution are upheld
in legal cases into the future.
Brennan, J. (1989, June 21). Syllabus:
SUPREME COURT OF THE UNITED STATES, 491 U.S. 397, Texas v.
Johnson, CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS, No. 88-155
Argued:
March 21, 1989 - Decided: June 21, 1989. Retrieved May 22, 2009, from Cornell
University Law
School West Site: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0491_0397_ZS.html
Street Law, Inc., Supreme Court Historical Society, McGraw-Hill/Glencoe, et
al. (2005). The Amendment
Process. Retrieved May 22, 2009 from Landmark Cases: Supreme Court Web Site:
http://www.landmarkcases.org/texas/amend.html
Street Law, Inc., Supreme Court Historical Society, McGraw-Hill/Glencoe, et
al. (2005). Background Summary
and Questions. Retrieved May 22, 2009 from Landmark Cases: Supreme Court Web
Site:
http://www.landmarkcases.org/texas/background3.html
Street Law, Inc., Supreme Court Historical Society, McGraw-Hill/Glencoe, et
al. (2005). Diagram of How the
Case Moved Through the Court System. Retrieved May 22, 2009 from Landmark Cases: Supreme
Court
Web Site: http://www.landmarkcases.org/texas/courtsystem.html