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Show HINCKLEY JOURNAL OF POLITICS SPRING 2001 The Constitutionality of Flag Burning: Hate or Free Speech? An Analysis of Texas v. Johnson By Nicholas Barker Ever since the Supreme Court handed down its 1989 ruling in Texas v. Johnson allowing desecration of the American flag as protected symbolic speech under the First Amendment, conservative forces in the United States have fought to pass a constitutional amendment that would make flag desecration a special category of speech subject to regulation by Congress. Arguments for and against a right to flag desecration made by the Supreme Court in the 5-4 Johnson decision and reactions to flag desecration will be discussed, with emphasis on legislators' and lobbyists' attempts to pass a flag protection amendment. General theories of free expression, in particular the work of philosopher John Stuart Mill and civil libertarian Alexander Mei/dejohn, will show the necessity of supporting a right to flag desecration in a nation based on a concept of government by the people. "A society that will trade a little liberty for a little order will lose both, and deserve neither." - Thomas Jefferson, in a letter to James Madison INTRODUCTION Outside of the 1984 Republican National Convention in Dallas, surrounded by protesters chanting "America, the red, white and blue, we spit on you" (Texas v. Johnson 1989, 399), Gregory Johnson doused an American flag with kerosene and set fire to it in protest of the policies of President Ronald Reagan. After Johnson was arrested under a Texas statute protecting "venerated objects" (Texas v. Johnson 1989, footnote 1), Korean War veteran Dan Walker scooped up the fragments of the burned flag and respectfully buried them according to Army regulations. When asked for comment, Walker said, "I still do not know what they were protesting" (Seattle Times 1989, Al). Thus began one of the most emotional First Amendment battles in our recent history, with most people angry at the disregard of the flag's special role in American culture. Indeed, values promoting Old Glory have been inculcated into American society ever since the founding of our country. For decades, school days were initiated by a harmony of voic- Nicholas Barker is a junior at the University of Utah majoring in Political Science and Economics. Nicholas would like to thank: Natalie Noel, Daniel Levin, Dan Jones, Doug Wright, Ron Hrebenar, and everyone at the Hinckley Institute. es repeating the Pledge of Allegiance, with attention focused on the Stars and Stripes. The sounds of thousands of people singing the Star Spangled Banner in unison at sporting events is as much a part of our national identity as barbecues and fireworks on the Fourth of July. Why then should we allow anyone to desecrate the banner that has contributed so much to our nation? The simple answer is that the First Amendment says so. This paper will outline the development of a constitutionally protected right to burn the flag as protected symbolic speech, and show that in a politicized society such as the United States, unpopular expressions such as flag burning must and should be tolerated. I offer two reasons for this: 1) every opinion must have an opportunity to be expressed, so that through discussion of conflicting ideas people can come closer to comprehending the truth which these opinions purport to represent, and 2) free speech is a prerequisite to the principle of government by the people, because every member of society must be as informed as possible to enable the fullest citizen participation in government. However, we must first examine the courts' treatment of flag burning, which forms the constitutional justification for the arguments that follow. THE ADJUDICATION OF TEXAS v. JOHNSON The Texas State Court of Appeals upheld Johnson's conviction, provoking an appeal to the Texas Court of Criminal Appeals, where the law was struck down because of constitutional case law interpreting the First Amendment's guarantee 49 |
