Flag Burning is a Protected Right
by Sharon Cornet
HIS 303 – The American Constitution
Professor: Joe Niehaus
May 22, 2009

 

Background of the case

            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.

 

Constitutional questions

            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. 

 

Summary

            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.

 

References

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

 

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