Flagburning: Is it “Symbolic speech” Protected Under the 1st Amendment?

CHEYENNE, WY – 12/5/16 – To avoid confusion about this issue, I’m posting the facts and case summary for Texas v. Johnson, 491 U.S. 397.(1989), where the Supreme Court ruled that flag burning constitutes symbolic speech that is protected by the First Amendment.

I think, if this case were decided today, it would be a tie vote. But, if it were to be decided AFTER Donald Trump appoints and the Senate confirms one more Justice, it would go the way of the dissent of Justice Stevens, below. So, this post is an example of how we escaped another bullet. If Clinton had won the Presidency and got to appoint judges, to the Supreme Court? This case would have remained as decided in 1989 and libs would be allowed to go on desecrating our flag without punishment. In short, I think there should be an exception, making it a criminal offense for flag burning, punishable by one year in jail and a $1,000 fine.
Facts
Gregory Lee Johnson burned an American flag outside of the convention center where the 1984 Republican National Convention was being held in Dallas, Texas. Johnson burned the flag to protest the policies of President Ronald Reagan. He was arrested and charged with violating a Texas statute that prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger in others. A Texas court tried and convicted Johnson. He appealed, arguing that his actions were “symbolic speech” protected by the First Amendment. The Supreme Court agreed to hear his case.
Issue
Whether flag burning constitutes “symbolic speech” protected by the First Amendment.
Ruling
Yes.
Reasoning
(5-4)
The majority of the Court, according to Justice William Brennan, agreed with Johnson and held that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment. The majority noted that freedom of speech protects actions that society may find very offensive, but society’s outrage alone is not justification for suppressing free speech.

In particular, the majority noted that the Texas law discriminated upon viewpoint, i.e., although the law punished actions, such as flag burning, that might arouse anger in others, it specifically exempted from prosecution actions that were respectful of venerated objects, e.g., burning and burying a worn-out flag. The majority said that the government could not discriminate in this way based solely upon viewpoint.

Dissent
Justice Stevens
Writing for the dissent, Justice Stevens argued that the flag’s unique status as a symbol of national unity outweighed “symbolic speech” concerns, and thus, the government could lawfully prohibit flag burning.

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