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Show THE CONSTITUTIONALITY OF FLAG BURNING: HATE OR FREE SPEECH? AN ANALYSIS OF TEXAS v. JOHNSON Nicholas Barker of free speech. After this decision, the State of Texas took the case to the Supreme Court of the United States. The Court announced its 5-4 decision in March 1989. Justice Brennan wrote the opinion, in which Marshall, Blackmun, Scalia, and Kennedy joined. Rehnquist wrote the dissent, in which White, O'Connor and Stevens joined. The majority upheld the Court of Appeals' decision that Johnson's act conveyed a message, and was therefore considered 'speech' under the First Amendment. "Johnson was convicted of flag desecration for burning the flag rather than for uttering insulting words. This fact," wrote Justice William Brennan, "somewhat complicates our consideration of his conviction under the First Amendment. We must first determine whether Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction." In order to determine if Johnson's actions constituted "speech," the Court applied the symbolic speech test, formalized in United States v. O'Brzen, stipulating that the conduct must have "intent to convey a particularized message," and that "the likelihood was great that the message would be understood by those who viewed it" (Texas v. Johnson 1989, 404). In support of this, Brennan quotes West Virginia Board of Education v. Barnette (1943), that "symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short cut from mind to mind" (West Virginia Board of Education v. Barnette 1943, 632; Texas v. Johnson 1989, 405). The Court concluded that flag burning was symbolic speech, much like "the expressive nature of students' wearing of black armbands to protest American military involvement in Vietnam" (Texas v. Johnson 1989, 404), upheld by the Court in Tinker v. Des Moines Independent Community School District (1969). In support of this, Johnson explained his reason for burning the flag: "The American Flag was burned as Ronald Reagan was being re-nominated as President. And a more powerful statement of symbolic speech.. .couldn't have been made at that time.. .we had new patriotism and no patriotism" (Texas v. Johnson 1989, 406). In these circumstances, Johnson's burning of the flag was conduct "sufficiently imbued with elements of communication" (United States v. O'Brien 1968, 409) to implicate the First and Fourteenth Amendments. However, the O'Brien standard also stipulated that there may be restrictions on symbolic speech if there is a "sufficiently important governmental interest" unrelated to the suppression of free expression that would justify restricting First Amendment protection. Texas' argument for the important governmental interest was twofold: first, the prevention of breaches of the peace, and second, the preservation of the flag as a symbol of nationhood and national unity. The first point did not stand because Texas admitted in oral argument that "no actual breach of the peace occurred at the time of the flag burning or in response to the flag burning" (Texas v. Johnson 1989, 408). In regard to the second point, Texas' con- cern that "such conduct will lead people to believe either that the flag does not stand for nationhood and national unity, but instead reflects other, less positive concepts," only arises when "when a person's treatment of the flag communicates some message" (Texas v. Johnson 1989, 410). This, says Justice Brennan, relates the Texas law "to the suppression of free expression within the meaning of O'Brzen," meaning that the O'Brien criteria for justifiably restricting expression are not met. Furthermore, "a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent" (West Virginia Board of Education v. Barnette 1943, 639; Terns v. Johnson 1989, 401). Therefore, Texas could not force the preservation of the flag as a national symbol. Next, Brennan tackles the question of whether, regardless of O'Brzen, Texas' interest in preserving the flag as a symbol of America justifies Johnson's conviction. It is noted that Johnson was prosecuted because he burned the flag in protest, not as a means of disposing of it because it was dirty or torn -which federal law designates as the preferred means of disposing of a flag unfit for display (36 U.S.C. 176k). Thus, the Texas law is "not aimed at protecting the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments that would cause serious offense to others" (Texas v. Johnson 1989, 411), meaning prosecution depends on the intent of the person burning the flag. Brennan says this is irrational: "if we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role...we would be saying that when it comes to impairing the flag's physical integrity, the flag itself may be used as a symbol...only in one direction." The effect would be to prescribe a set of orthodox messages to be associated with the flag. Moreover, in the words of West Virginia Board of Education, to sustain the Texas statute mandates "that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind" (West Virginia Board of Education v. Barnette 1943, 634). Concluding, Brennan says that "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" (Texas v. Johnson 1989, 414). This position was attacked by Chief Justice Rehnquist, who said that, "for more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here" (Texas v. Johnson 1989, 422). Amid stories and poems ranging from the Revolutionary War to Vietnam, Rehnquist built upon the historical significance of the flag as the primary reason for his opinion that flag desecration represents a special case that 50 |