Texas v. Johnson Protected Flag Burning, and Conservatives Still Argue It

Of all the Supreme Court cases that conservatives like to cite, Texas v. Johnson is the odd one. It is a case in which Antonin Scalia, the hero of the originalist movement, voted to protect an act that most conservatives find revolting. It is a case in which the dissenters included the Chief Justice and two other justices who generally appeared on the right. It was decided by one vote, and nearly four decades later, honest conservatives still divide over it.

That makes it a useful case for people who want to understand how conservatives actually reason. Everyone on the right loves the flag. The disagreement is about what the Constitution allows the government to do about people who do not. This post gives the facts, the holding and the dissents, then sets out both conservative positions fairly, and then argues one of them. The argument comes last on purpose, because a reader should see the best of both before being asked to choose.

Definitions

Symbolic speech is conduct intended to convey a message that observers are likely to understand. The Court has long held that the First Amendment's protection of "the freedom of speech" reaches some expressive conduct: wearing black armbands to protest a war, for example, as in Tinker v. Des Moines in 1969.

Content-based regulation targets expression because of the message it communicates. Such rules face the most demanding judicial review, called strict scrutiny, and rarely survive.

Desecration means treating a venerated object with disrespect. The statute at the centre of this case punished it.

The facts: Dallas, 1984

In August 1984 the Republican National Convention met in Dallas. Outside, demonstrators held a political protest. During that demonstration, one of them, Gregory Lee Johnson, burned an American flag while the others chanted. No one was physically injured or threatened. Witnesses said afterward that they were seriously offended.

Texas charged Johnson under a state law that made it an offence to desecrate a venerated object, defined to include the national flag, in a way the actor knew would seriously offend one or more persons likely to observe or discover the action. He was convicted, sentenced to a year in prison and fined two thousand dollars. The Texas Court of Criminal Appeals reversed. Texas took the case to the Supreme Court, which heard argument on March 21, 1989 and decided it on June 21, 1989.

The holding

By a vote of five to four, the Court affirmed the reversal. Justice Brennan wrote the opinion of the Court, joined by Justices Marshall, Blackmun, Scalia and Kennedy. The reasoning ran in steps.

First, burning the flag in that setting was expressive conduct, since it was a political protest outside a political convention and it conveyed a message of dissent. Second, Texas had put forward two interests. The first was preventing breaches of the peace, and the Court found no evidence that the burning had threatened one. The second was preserving the flag as a symbol of nationhood and national unity. That interest, the Court held, was related to the suppression of expression, because it depended on what message the burning communicated, and so the statute had to meet the strictest scrutiny. It failed.

Brennan's best-known sentence states the principle in general form: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." He also wrote that "the way to preserve the flag's special role is not to punish those who feel differently about these matters," and that he could imagine no more appropriate response to burning a flag than waving one's own.

Justice Kennedy, who joined the majority, wrote a short concurrence that conservatives remember for its candour. He said he agreed with the Court's judgment even though he found the result distasteful. He wrote that it was "poignant but fundamental that the flag protects those who hold it in contempt."

The dissents

Chief Justice Rehnquist, joined by Justices White and O'Connor, wrote a dissent that leaned on history. He argued that the flag holds a unique place in American life and that the government's interest in protecting it was legitimate, and he invoked Holmes's remark that a page of history is worth a volume of logic.

Justice Stevens wrote a separate dissent. He argued that the flag's value as a national symbol justified the prohibition, and that the statute was not aimed at the message itself.

What followed: Congress tries again

The decision was met with a political storm. President George H. W. Bush called for a constitutional amendment. The House and Senate instead passed the Flag Protection Act of 1989, which punished anyone who knowingly mutilated, defaced, physically defiled, burned, maintained on the floor or ground, or trampled upon a flag of the United States. The act became law in October 1989 without the President's signature.

It did not last. In United States v. Eichman, decided on June 11, 1990, the Court struck the new law down by the same five-to-four line-up. Brennan wrote again, and the reasoning was that even without a reference to offence, the government's interest was in protecting the flag's symbolic meaning, which was still related to expression. The dissenters were the same four, in an opinion by Justice Stevens. Congress then turned to the amendment.

The amendment would have been a short text empowering Congress to prohibit the physical desecration of the flag of the United States. The House of Representatives passed such a proposal several times between 1995 and 2005, and it stalled in the Senate. The Senate came closest in June 2006, when the vote was sixty-six in favour and thirty-four against, one vote short of the two-thirds Article V requires. A reader who wants to see how the Constitution's amendment process works should read Article V, and the Constitution page on this site carries the text.

The two conservative positions, stated fairly

The first position, which I will call the protectionist view, holds that the Court got it wrong, and that a constitutional amendment is the right remedy. Its arguments run as follows.

• The flag is unique. The country has one flag, and it carries a meaning that no other symbol carries. It stood over the dead of Gettysburg and the beaches of Normandy. A law that protects it protects a shared inheritance, and it does not suppress any idea, because the burner remains free to say anything he likes in any other way.
• A ban on an act is not a ban on a message. A person who wants to convey contempt for the government can write, speak, march, publish and vote. Burning a particular object is an extra, and a government may restrict one mode of expression where every other mode remains open.
• The Court has accepted limits before. Obscenity, fighting words and true threats are unprotected, and nobody says the First Amendment is therefore a dead letter. There is room for a category of conduct that offends a community's deepest feelings, and for its protection by the people's elected representatives.
• The amendment process is the constitutional answer. If the Court has misread the Constitution, the people can correct it through Article V. That is not an attack on the Constitution. It is its mechanism.

The second position, the originalist or libertarian-leaning view, holds that Johnson was right. Its arguments:

• The text protects "the freedom of speech." Expression through symbols is one of the oldest forms of speech. The Founders' generation burned and hanged effigies in protest, and tore down and burned symbols of royal authority. A protester who burns a flag is in a long American tradition of symbolic dissent, however unwelcome.
• The government cannot punish a message because it is offensive. The moment a state may prohibit an expressive act because of the idea it conveys, the principle becomes a matter of whose ideas the majority dislikes. The rule that protects the flag-burner is the rule that protects the preacher, the pamphleteer and the conservative whom a hostile majority wants to silence.
• The case is not about the flag, it is about power. A government that may punish disrespect for its symbols has a very strong tool for punishing dissent in general. Authoritarian governments are quick to protect their flags.
• Scalia's vote was not a lapse. He applied the same method to this case that he applied elsewhere: read the text, follow it where it leads, and accept that sometimes it protects behaviour a person despises.

I should say what unites them. Both sides love the flag. Both claim the Constitution. They differ on what the First Amendment's "freedom of speech" covers and on whether the amendment process is the right place for the correction.

The argument I would make

I will take the second position, and I will do it in numbered form, because a conclusion should earn its place.

1. The principle protects us. The First Amendment's value to conservatives is greatest when conservatives are the minority. Ask what a government with the power to punish "desecration" of national symbols would do to a person who publicly mocked a policy it prized. The same law that protects the flag in one era can be written to protect other symbols in the next.
2. The remedy of the dissenters is a counter-argument, not a law. Brennan's own suggestion in the opinion is that the answer to a flag-burner is to wave one's own flag. That answer is what patriots actually did. The country's response to flag-burning in public has overwhelmingly been disgust and, then, more flags.
3. A compelled reverence is worth little. This is the lesson of Barnette in 1943, when the Court held that the state cannot force a schoolchild to salute. The ruling that protects the burner is the same family as the ruling that protects the reluctant child, and both rest on the idea that a free country's loyalty must be freely given. Barnette's Fixed Star, Reading the 1943 Opinion on the Pledge Passage by Passage reads that opinion closely.
4. The amendment would carve a hole in the First Amendment. Every amendment that narrows a freedom should be treated as a serious step. The proposal to allow punishment of flag desecration would be the first amendment to cut back on the Bill of Rights, and once the principle that "a symbol the majority loves may be insulated from insult" is written into the text, there is no reason to expect it to stay tied to the flag. Opponents of the amendment in 2006 made that argument, and I think it was sound.
5. There is a harder case to compare. In Snyder v. Phelps in 2011, the Court protected hateful picketing near a soldier's funeral, eight to one. The picketers there were far more offensive to far more people than the burner in Dallas. If the Court's rule protects them, it must protect the burner, and a conservative who accepts the first holding should think hard before rejecting the second. Snyder v. Phelps and the Hardest Free Speech Case Conservatives Ever Defended tells that case.

What the protectionist deserves to hear

I do not think the protectionist is foolish, and I will not pretend he is. His instinct is that a nation should be able to say that some things are sacred, and that there is something wrong with a legal order that treats the national flag the same as a piece of cloth. That instinct is deeply conservative, in the Burkean sense that old symbols hold a society together. The proper reply is not to deny the instinct. It is to say that the way to protect a sacred thing in a free country is to love it in public, teach it to children, fly it, defend it and decline to give the burner the martyrdom that a prosecution would bring.

There is a practical point as well. A statute against flag-burning would give every protester with a lighter a way to become a defendant, and a defendant is a platform. Prosecutors know that a trial is the best publicity a cause can buy. Nothing has done more to publicise the burning of flags than the attempts to ban it. The flag does not need the criminal law to protect it. It needs the affection of the people who live under it.

For the rules of etiquette that do apply to the flag, see Old Glory's Rules, What the Flag Code Says and Why Most of Us Break It, and for the courts' role more broadly, the site's courts page.

The case in brief

1. In Texas v. Johnson (1989) the Court held, five to four, that burning a flag as political protest is expressive conduct, and that Texas's interest in the flag's symbolic meaning was related to the suppression of expression.
2. The Flag Protection Act of 1989 fell the next year in United States v. Eichman, by the same five-to-four vote, and the amendment fell one vote short in the Senate in 2006.
3. Conservatives disagree in good faith: protectionists see a unique symbol and a legitimate amendment, originalists see the freedom of speech and the danger of punishing offence.
4. The better argument is that the rule protecting the burner also protects every unpopular speaker, including conservatives, and that a free country's loyalty must be freely given.
5. The answer to a flag-burner is to love the flag loudly, not to prosecute him.

What you can do: read Article V and the First Amendment on the Constitution page, then decide for yourself which of the two conservative positions you hold, and write down your reasons before you tell anyone else.