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