Introduction
America is hailed as the land of freedom and opportunity. A large part of this freedom is that citizens have the right to speak their minds freely without fear of government persecution. Public debate is a crucial component to the American ideal of democracy and a society self-governed by the people. The principle of free speech and free expression is jealously guarded and enshrined in the Constitution. The First Amendment reads, “Congress shall make no lawabridging the freedom of speech” (U.S. Const. amend. I). Over the years, the Supreme Court has interpreted many challenging questions arising under the First Amendment. While there is a constitutional presumption that speech is protected, certain categories of speech have been found to fall outside the scope of First Amendment protection. For example, speech that is not protected includes child pornography, “fighting words,” and obscenity (Henderson, 1996, p. 543).
The First Amendment protects the right to express ideas or opinions that may be offensive or disagreeable. Thus, the First Amendment extends full protection to ideas, opinions, and thoughts. If the First Amendment means nothing else, it means that the government cannot restrict speech based on its particular message, ideas, subject matter, or content (Henderson, 1996, p. 544). Included under the penumbra of protected First Amendment rights is the right to symbolic expression (Henderson, 1996, p. 533). While the government cannot prohibit speech based on content alone, the government is permitted to enact content-neutral restrictions on speech so long as such restrictions do not discriminate against a particular viewpoint (Henderson, 1996, pp. 545-546).
The First Amendment and the American Flag
A controversial First Amendment question is whether burning the American flag is protected speech or expression. It is clear that symbolic expression is considered speech for First Amendment purposes. What makes flag burning a difficult topic to analyze is that for many Americans, the American flag is more than just a flag – it is symbol of patriotism and nationhood. Throughout the nation’s history, the flag has assumed a somewhat majestic quality. The American flag has come to embody important American values and ideas. The thought of someone publicly desecrating and burning the American flag is highly offensive to many people. Reflecting general public opinion on flag burning, many states passed statutes making it a crime to misuse or desecrate the American flag.
One of the foremost cases addressing the public destruction of the American flag was Street v. New York. In this case, a New York statute made it a crime “publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]” (Street v. New York, 1969, p. 578). Appellant was convicted under this statute (Street v. New York, 1969, p. 578). In reversing the conviction, the Supreme Court found that the statute was unconstitutional in part because it convicted the appellant based on his speech against the flag (Street v. New York, 1969, p. 594). The Court, however, left open the issue of whether burning or misusing the flag was protected expression.
The Spence v. Washington case set forth the notion that misusing or tampering with the American flag falls under expressive conduct. The state of Washington passed a statute that made it a crime to display the American flag and to attach or superimpose extraneous material, figures, or symbols on the flag (Spence v. Washington 405). A college student hung affixed a peace symbol and hung an American flag upside down in his apartment window (Spence v. Washington 406). He was convicted for violating the Washington statute (Spence v. Washington 406). The Supreme Court found that it was important to the case that the flag was located on private property and in no way impeded public order or breach of the peace (Spence v. Washington 409). The Court left the question open for another day as to whether the state could prohibit the public mishandling of the American flag.
Both the Street and Spence cases paved the way for the landmark flag burning case of Texas v. Johnson. In Texas v. Johnson, the Supreme Court was squarely confronted with the issue of whether public flag burning is protected expression under the First Amendment. During the 1984 Republican Conventions in Dallas, Johnson participated in the public demonstrations (Texas v. Johnson, 1989, p. 399). In front of City Hall, Johnson unfurled the American flag, doused it with gasoline, and burned it (Texas v. Johnson, 1989, p. 399). While no one sustained injuries from the flag burning demonstration, many onlookers testified that they were seriously offended (Texas v. Johnson, 1989, p. 399). Johnson was subsequently convicted under a Texas criminal statute for intentionally desecrating and burning the American flag (Texas v. Johnson, 1989, p. 399).
The first legal issue that the Supreme Court addressed was whether flag burning was considered protected expression (Texas v. Johnson, 1989, p. 406). The Court found that burning the American flag was expressive because the conduct was performed in the act of political protest (Texas v. Johnson, 1989, p. 406). Although the Court recognized that expressive conduct may be regulated if the government has a compelling interest in regulating such expression, none of the interests were present in this case to justify restricting Johnson’s expression (Texas v. Johnson, 1989, p. 407). What was crucial to the case was that Johnson’s public burning of the American flag did not actually disturb the peace, nor did it threaten to disturb the peace (Texas v. Johnson, 1989, p. 408). The mere possibility that expressive conduct may incite riot is insufficient to justify restricting the conduct altogether (Texas v. Johnson, 1989, p. 408).
In finding that flag burning constitutes expressive conduct warranting First Amendment protection, the Court next considered whether the state interest in preserving the flag as a symbol of national unity justified sustaining Johnson’s criminal conviction (Texas v. Johnson, 1989, p. 410). Because the state is enforcing a content-based restriction on speech, the Court applied strict scrutiny review to the statute at hand (Texas v. Johnson, 1989, p. 412). In reversing the conviction, the Court cited well-established precedent that the government cannot prohibit the expression of an idea “simply because society finds the idea itself offensive or disagreeable” (Texas v. Johnson, 1989, p. 414). Reviewed under this standard then, sustaining Johnson’s conviction for burning the American flag would amount to penalizing him for expressing his own opinions and beliefs, the very kind of expression the First Amendment was intended to protect (Texas v. Johnson, 1989, p. 414).
The Texas v. Johnson case stands for the proposition that flag burning constitutes protected expression under the First Amendment. Although flag burning may offend many, the mere fact that an expression might be offensive in nature does not justify the restriction of the expression absent imminent lawlessness or disruption. Thus, flag burning remains legal as the American flags wave on.
References
U.S. Const. amend. I.
Henderson, M.A. (1995). Today’s symbolic speech dilemma: Flag desecration and the
proposed constitutional amendment. South Dakota Law Review, 533-573.
Spence v. Washington, 418 U.S. 405 (1974).
Street v. New York, 394 U.S. 576 (1969).
Texas v. Johnson, 491 U.S. 397 (1989).
