A Bedrock Principle

Tuesday’s flag-burning decision divided the U.S. Supreme Court as deeply as any in recent memory. Unfortunately, some dissenting opinions were so strongly worded that they will be read by some as protests against being forced to choose between law and country.

The court ruled that the Constitution protects the burning of an American flag as an expression of free speech. Justice William J. Brennan Jr. persuasively declared for the 5-4 majority that, “we do not consecrate the flag by punishing its desecration, for in so doing we dilute the the freedom that this cherished emblem represents.”

But Justice Anthony M. Kennedy, in a concurring opinion, spelled out the anguish that the decision in Texas vs. Johnson will mean for many Americans. “The hard fact is that sometimes we must make decisions we do not like,” Kennedy said. “The case before us forces recognition of the costs to which (adherence to law and the Constitution) commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”

The case involved the conviction of Gregory L. Johnson for burning a flag during the 1984 Republican National Convention in Dallas, Tex., while protesters around him chanted, “Red, White and Blue, we spit on you.”

Dissenting for himself and Justices Sandra Day O’Connor and Byron R. White, Chief Justice William H. Rehnquist said that flag-burning is not speech but “an inarticulate grunt or roar . . . most likely to be indulged in not to express any particular idea, but to antagonize others.”

More compelling, for us, is the Brennan argument that “if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable . . . .”