EXCERPTS: The Flag Will Be Strengthened . . . Not Weakened

Following are excerpts from Justice William J. Brennan’s opinion in the flag-burning case:

The First Amendment literally forbids the abridgement only of speech, but we have long recognized that its protection does not end at the spoken or written word. While we have rejected the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea . . . we have acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth amendments.

(Gregory) Johnson burned an American flag as part--indeed, as the culmination--of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. At his trial, Johnson explained his reasons for burning the flag as follows: “The American flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time. It’s quite a just position (juxtaposition). We had new patriotism and no patriotism.” In these circumstances, Johnson’s burning of the flag was conduct sufficiently imbued with elements of communication . . . to implicate the First Amendment.

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. To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status?

. . . The First Amendment does not guarantee that other concepts virtually sacred to our nation as a whole--such as the principle that discrimination on the basis of race is odious and destructive--will go unquestioned in the marketplace of ideas . . . . We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.

We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. . . . It is the nation’s resilience, not its rigidity, that Texas sees reflected in the flag--and it is that resilience that we reassert today.

The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion . . . .

We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag-burner’s message than by saluting the flag that burns. . . .

Rehnquist’s Dissent

Excerpts from Chief Justice William H. Rehnquist’s dissenting opinion, in which Justices Byron R. White and Sandra Day O’Connor joined:

In holding this Texas statute unconstitutional, the court ignores Justice Holmes’ familiar aphorism that “a page of history is worth a volume of logic.” 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.

The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another “idea” or “point of view” competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the act of Congress and the laws of 48 of the 50 states, which make criminal the public burning of the flag.

Here it may equally well be said that the public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace. Johnson was free to make any verbal denunciation of the flag that he wished; indeed, he was free to burn the flag in private. He could publicly burn other symbols of the government or effigies of political leaders. He did lead a march through the streets of Dallas and conducted a rally in front of the Dallas City Hall . . . . For none of these acts was he arrested or prosecuted; it was only when he proceeded to burn publicly an American flag stolen from its rightful owner that he violated the Texas statute.

The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest--a form of protest that was profoundly offensive to many--and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy. Thus, in no way can it be said that Texas is punishing him because his hearers--or any other group of people--were profoundly opposed to the message that he sought to convey . . . .

Uncritical extension of constitutional protection to the burning of the flag risks the frustration of the very purpose for which organized governments are instituted. 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. 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. I would uphold the Texas statute as applied in this case.

Stevens’ Dissent

Excerpts from Justice John Paul Stevens’ dissenting opinion:

The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might enlarge the market for free expression, but at a cost I would not pay. Similarly, in my considered judgment, sanctioning the public desecration of the flag will tarnish its value--both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression--including uttering words critical of the flag . . . be employed.

The court is therefore quite wrong in blandly asserting that respondent “was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.” Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies . . . .

The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for--and our history demonstrates that they are--it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.

I respectfully dissent.