The American flag is a powerful symbol that evokes strong emotions in many citizens. As a result, few methods of political protest are as offensive—or as potentially effective at attracting public attention—as flag burning. Although incidents of flag burning in the United States are relatively rare, law-makers have enacted flag-desecration statutes and even proposed a federal constitutional amendment that would prohibit flag burning. Supporters of these efforts believe they are necessary to preserve the flag as a cherished emblem of national unity. Opponents argue that flag burning constitutes a means of expressing dissent that is, and must remain, fully protected by the First Amendment. In a pair of cases decided in 1989 and 1990, the U.S. Supreme Court held that the First Amendment protects flag burning as a type of Symbolic Speech. Since then, proposals for a flagdesecration amendment to the Constitution have been introduced frequently in Congress, but so far none has gathered the two-thirds support in the Senate needed for passage. Is Flag Burning ‘‘Speech’’? The First Amendment ensures the right to free speech; it does not prohibit the government from regulating behavior. Flag burning certainly communicates a message, but it does so through an act and without the necessity of words. Could the government therefore treat flag burning as illegal conduct, rather than as protected expression?
The Supreme Court dodged the question when it first emerged in the 1960s in Street v. New York (1969). In that case, decorated war veteran Sydney Street burned a flag on a Brooklyn street corner after learning that civil rights activist James Meredith had been shot by a sniper in Mississippi. Street told the gathered crowd, ‘‘We don’t need no damn flag,’’ and explained to a police officer that ‘‘If they let that happen to Meredith we don’t need an American flag.’’ Street was convicted under a New York statute that criminalized flag desecration, as well as the expression of contemptuous words about the flag. Although the Supreme Court overturned Street’s conviction on First Amendment grounds, the decision rested on the conclusion that Street had been punished for his offensive language, rather than for his act of flag burning.
In related contexts, however, the Court had already recognized that expressive conduct could qualify as speech entitled to a measure of First Amendment protection. For example, in Stromberg v. California (1931), the Court overturned a woman’s conviction under a California law that prohibited public use or display of a red flag ‘‘as a sign, symbol or emblem of opposition to organized government,’’ noting that the ban interfered with free political discussion. And in a famous case involving a war protestor who burned his draft card, United States v. O’Brien (1968), the Court outlined a test for determining when government regulation is justified in symbolic speech cases. According to that test, the First Amendment requires that government regulation of symbolic speech be content neutral and narrowly tailored to achieve a valid government interest that is unrelated to the suppression of expression.
Does all behavior that communicates an idea, therefore, constitute speech protected by the First Amendment? Not necessarily. According to the Court in Spence v. Washington (1974), expressive conduct will only qualify as symbolic speech if an ‘‘intent to convey a particular message was present, and. . .the likelihood was great that the message would be understood by those who viewed it.’’
Texas v. Johnson
The Supreme Court finally addressed the flag-burning issue in Texas v. Johnson (1989), holding by a fiveto- four vote that Gregory Johnson’s conviction under a Texas flag desecration statute violated the First Amendment. Johnson had burned an American flag at the 1984 Republican National Convention in Dallas as part of a public protest against Reagan Administration policies and had been tried, convicted, and sentenced to one year in jail and a $2,000 fine. The statute prohibited any physical mistreatment of the flag ‘‘that the actor knows will seriously offend one or more persons likely to observe or discover his action.’’
Writing for the majority, Justice William Brennan began by confirming that Johnson’s act qualified as symbolic speech under the First Amendment, noting that flag burning in this context clearly conveyed a particular political message. Justice Brennan then looked to see whether the state could justify its prohibition against flag burning in a content-neutral way. The state made two arguments to support Johnson’s conviction: first, that it was necessary to avert a breach of the peace; and second, that it preserved the flag’s unique symbolic value.
With respect to the first argument, Justice Brennan noted that although several onlookers had been offended by Johnson’s conduct, no breach of the peace had occurred or had been threatened. According to the Court, the state may not prohibit offensive speech by merely asserting that such speech presents a risk of violence. Nor could the state say that Johnson’s conduct fell within the First Amendment exception for Fighting Words, because no bystander could have reasonably regarded Johnson’s act as ‘‘a direct personal insult or an invitation to exchange fisticuffs.’’
As for the asserted state interest in safeguarding the flag’s value as a national symbol, Justice Brennan concluded that this interest was not content neutral. The Texas flag desecration statute contained an exception that allowed worn, dirty, or torn flags to be burned as a proper method of disposal. Therefore, while the statute allowed respectful, ‘‘patriotic’’ flag burning, it prohibited flag burning as an expression of political protest. ‘‘If there is a bedrock principle underlying the First Amendment,’’ Justice Brennan wrote, ‘‘it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’’
The Court’s decision in Texas v. Johnson touched off what one newspaper termed ‘‘a firestorm of indignation’’ that ultimately resulted in Congressional passage of the federal Flag Protection Act of 1989. The law attempted to prohibit flag desecration in a content- neutral manner by banning all physical harm to the flag (except that caused by disposing of old or soiled flags) regardless of the conduct’s effect on bystanders. Nevertheless, the Court in United States v. Eichman (1990) struck down the law in a fiveto- four decision. Again writing for the majority, Justice Brennan concluded that the federal law violated the First Amendment because it proscribed expression ‘‘out of concern for its likely communicative impact.’’ In other words, the statute was content based because it criminalized only those acts that demonstrated disrespect for the flag. ‘‘Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering,’’ he wrote. Justice John Paul Stevens authored the dissent, in which he argued that the statute was content neutral, because it prohibited all flag desecration no matter what the actor’s intended message.
Since the Court’s decision in Eichman, the House of Representatives approved a Constitutional amendment in 1995, 1997, 1999, 2001, and 2003 that would have allowed Congress or the states to criminalize ‘‘physical desecration of the flag.’’ To date, this proposed amendment has always been defeated in the Senate. Supporters of the amendment argue that the flag is a unique national symbol that deserves special protection against mistreatment or disrespect. Flag burning, according to this view, adds nothing meaningful to the marketplace of ideas and, therefore, has no value as speech. Critics respond that a nation founded on principles of liberty must safeguard its citizens’ right to express dissent—even when that expression takes a form that the majority finds offensive. Critics also object to the possible wide array of legislative interpretations under the amendment regarding what constitutes either ‘‘desecration’’ or ‘‘the flag.’’
NICOLE B. CA ´ SAREZ
References and Further Reading
- Goldstein, Robert Justin. Flag Burning and Free Speech: The Case of Texas v. Johnson. Lawrence, KS: University Press of Kansas, 2000.
- Greenawalt, Kent, O’er the Land of the Free: Flag Burning as Speech, UCLA Law Review 37 (1990): 925–947.
- Smolla, Rodney A. Free Speech in an Open Society. New York: Alfred A. Knopf, Inc., 1992.
- Van Alstyne, William W. Freedom of speech and the flag anti-desecration amendment: antinomies of constitutional choice, in Rodgers, Raymond S., ed. Free Speech Yearbook, Vol. 29. Carbondale & Edwardsville: Southern Illinois University Press, 1991, pp. 96–105.
Cases and Statutes Cited
- Spence v. Washington, 418 U.S. 405 (1974)
- Street v. New York, 394 U.S. 576 (1969)
- Stromberg v. California, 283 U.S. 359 (1931)
- Texas v. Johnson, 491 U.S. 397 (1989)
- United States v. Eichman, 496 U.S. 310 (1990)
- United States v. O’Brien, 391 U.S. 367 (1968)