U.S. Flag Burning Upheld as a 1st Amendment Right : Justices’ 5-4 Vote Upsets Tex. Verdict

The Supreme Court ruled today that burning of the American flag as a political protest is protected by the First Amendment of the Constitution.

The court’s action came in a case brought by the state of Texas, which was seeking to reinstate a one-year prison sentence given to a man who burned a U.S. flag during a protest of Reagan Administration policies.

The Texas Court of Criminal Appeals ruled on April 20, 1988, that the action by Gregory Lee Johnson was protected under the First Amendment guarantee of freedom of speech.

The high court today affirmed that decision on a 5-4 vote in an opinion by Justice William J. Brennan Jr., the court’s oldest and most liberal member, who was joined by the two newest conservatives on the bench, Justices Antonin Scalia and Anthony M. Kennedy, as well as Thurgood Marshall and Harry A. Blackmun.

Burned During Convention

Brennan said that Johnson’s burning of the flag during the 1984 Republican National Convention in Dallas made the act an expression and therefore enabled him to invoke the protection of the First Amendment.

“We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents,” Brennan wrote.

He concluded, “Nor does the state’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression.”

Chief Justice William H. Rehnquist and Justices Byron R. White, Sandra Day O’Connor and John Paul Stevens dissented.

In his dissent, Rehnquist wrote acidly, “The court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined.

Soldiers Die for Flag

“The government may conscript men into the armed forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight.”

Stevens, in a rare move, read his dissent from the bench to a hushed courtroom. He said the court’s decision may strengthen freedom of expression, “but I am unpersuaded.”

“The creation of a federal right to post bulletin boards and graffiti on the Washington Monument or extinguish the flame on President Kennedy’s grave might enlarge the market for freedom of expression, but at a cost I would not pay,” he said. “The case has nothing to do with disagreeable ideas. It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset.”

The court’s decision to hear the case last October came in the midst of a presidential election that focused on patriotism and reverence for the flag--issues that have prompted the candidates and Congress to debate the merits of the Pledge of Allegiance and sent George Bush campaigning to a flag factory.

Richard Avena, executive director of the Texas Civil Liberties Union, which initially represented Johnson, said the court decision was “a little bit surprising, given the mood and the tenor of the court and its positions on such cases as affirmative action.”