The Supreme Court of the United States decided on June 21st, 1989 that Alex Johnson was protected by the first amendment when he decided to burn a flag in protest of the policies of then-president Reagan during the Republican National Convention of 1984. The decision was 5-4 with the majority being Justices Brennan, Marshall, Blackmun, Scalia, and Kennedy, and Justices Rehnquist, White, O’Connor, and Stevens dissenting. The majority opinion was written by Justice Brennan.

 

Outside of the Republican National Convention of 1984, Alex Johnson took part in a “Republican War Chest Tour” protest. According to the Supreme Court Decision, “The purpose of this event was to protest the policies of the Reagan administration and of certain Dallas-based corporations. 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.” The group of protesters also spray-painted buildings and pushed over potted plants, though the opinion of the Court pointed out that “Johnson himself took no part in such activities.”

 

When the demonstration ended at Dallas City Hall, Johnson took out an American flag that had been given to him by another protester “who had taken it from a flagpole outside one of the targeted buildings,” according to the decision of the Supreme Court. Johnson then “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.’” As described in the decision, “No one was physically injured or threatened with injury.” Although there were several witnesses to the event who testified in court to being “seriously offended by the flag burning.” Johnson was arrested and was the only protester out of more than 100 to be charged with a crime. He was charged with the “desecration of a venerated object.” He was brought to trial and, as described by the Supreme Court decision, “convicted, sentenced to one year in prison, and fined $2,000.” The decision was affirmed by the Court of Appeals for the Fifth District of Texas, and reversed by the Texas Court of Criminal Appeals, which stated that “the State could not, consistent with the First Amendment, punish Johnson for burning the flag in these circumstances.” They found that in his burning of the flag, Johnson was partaking in “expressive conduct protected by the First Amendment.” The argument used by the state of Texas was that Johnson’s burning of the flag contributed to a “breach of peace” which is also prohibited under Texas law, but the Texas Court of Appeals stated that the already existing statute prohibiting breaches of peace could be used to prosecute instances of such activity and it is not necessary to also bring charges for specifically the burning of a flag.

 

In their decision, the United States Supreme Court held that Johnson’s burning of the American flag in this particular instance did constitute expressive conduct and thus a form of speech, therefore the act was protected under the first amendment and could not be infringed upon. According to the opinion, the Court also believed that “the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent.” The opinion also stated that the state of Texas did not offer reason enough to convict Johnson apart from their reason of the “desecration” of the American Flag, which has been established to be protected speech. If they had been able to offer evidence that Johnson’s flag burning was intended to start a riot or incite violence, then the action could have been stopped and Johnson could have been charged with a crime. However, the state of Texas simply believing that those who are offended by the burning of the flag might cause violence or a riot would not be enough evidence to convict, as is stated in the Supreme Court decision, “Expression may not be prohibited on the basis that an audience that takes serious offense to the expression may disturb the peace, since the government cannot assume that every expression of a provocative idea will incite a riot but must look to the actual circumstances surrounding the expression.”

 

Finally, the Supreme Court decided that the state of Texas’ interest in preserving the flag as a sacred or venerated object would not have justified Johnson’s conviction, because, “since the Texas statute is not aimed at protecting the physical integrity of the flag in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others. It is therefore subject to ‘the most exacting scrutiny.’” according to the Supreme Court decision. They further clarified that, “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.”

 

In the official opinion of the Supreme Court written by Justice Brennan, it recognized the logic in the opinion of the Texas State Court of Appeals, where they stated, “Recognizing that the right to differ is the centerpiece of our First Amendment freedoms. A government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.” This essentially means that because the United States government cannot legislate what the American flag means to its citizens as a symbol, they cannot legislate protections for that nonexistent, overarching meaning. The flag will mean different things to different people, so it is impossible to “protect” a single meaning, because a singular meaning does not exist.

 

The opinion goes on to discuss the First Amendment, the concept of free speech, and what constitutes free speech. The opinion states that, “The First Amendment literally forbids the abridgment only of “speech,” but we have long recognized that its protection does not end at the spoken or written word. While we have rejected “the view that an apparently limitless variety of conduct can be labeled `speech’ whenever the person engaging in the conduct intends thereby to express an idea,” United States v. O’Brien, supra, at 376, we have acknowledged that conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’”

 

In essence, “free speech” does not just apply to words, be they spoken aloud or written down, but it also cannot be applied to any and all actions. The opinion then discusses the ways in which an action is determined to be an act of speech or not. According to the opinion, the question that must be asked is “whether an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” In the specific case of Texas vs. Johnson, Johnson’s action of burning a flag as part of a protest against the Republican party and the policies of Ronald Reagan clearly did have an intended message, and because of the symbolic nature of the flag and the dramatic action of setting it aflame, combined with the context in which the action occurred, the intended message of the act was very likely to be interpreted by any and all people who witnessed it.

 

The opinion then brings up the many ways the American flag is involved in various forms of protest that are not allowed to be legislated against or punished by the government because they have all been protected by judicial decisions. This establishes precedent for the decision they are currently handing out. The opinion states,  “Attaching a peace sign to the flag, Spence, supra, at 409-410; refusing to salute the flag, Barnette, 319 U.S., at 632 ; and displaying a red flag, Stromberg v. California, 283 U.S. 359 , [491 U.S. 397, 405]   368-369 (1931), we have held, all may find shelter under the First Amendment.” These instances of using the American flag specifically or invoking the symbolism of the flag have all been decided to fall under the protections of free speech, therefore, the burning of a flag must also follow this precedent.

 

In the end, the Supreme Court decided that while to some people, whether they be citizens or members of the government, the flag may be a symbol or an object that should be protected at all costs so that its meaning may be preserved and respected, that meaning and reverence cannot be impressed upon the entire citizenry. The personal freedoms of the individual must be protected above the perceived meaning of an object or symbol.

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