Flag Burning: Is this protected by the First Amendment?
© 2001 John W. Cooper
Can an individual be prosecuted for openly burning the American flag in a political protest? Gregory Johnson did this in a political protest outside Dallas City Hall. He was then tried and convicted of desecrating a venerated object under a Texas law (Penal Code 42.09), which states that "a person commits an offense if he intentionally or knowingly desecrates a state or national flag" (317). The question of whether this Texas law is in violation of the First Amendment, which "holds that Congress shall make no law… abridging the freedom of speech" (316), was brought before the United States Supreme Court in Texas v. Johnson (1989). A divided court ruled 5 to 4 that the Texas law was in violation of the First Amendment. Using the same Constitution, precedents, and legal standards, the Supreme Court justices came to two drastically different positions regarding the constitutionality of prohibiting flag burning. To see how such a division is possible, we are going to compare and contrast both the arguments and the methods of argumentation used by both the majority opinion (written by Associate Justice Brennan) and the dissenting opinion (written by Chief Justice Rehnquist), which critiques the majority opinion.
Surprisingly, both Associate Justice Brennan's majority opinion and Chief Justice Rehnquist's response, the dissenting opinion, cited Street v. New York to support their contradictory conclusions. In Street, the Supreme Court overturned the conviction of the defendant, who "burned a flag in the street shouting 'We don't need no damned flag' " (323). Brennan argues that the precedent in this case supports the majority opinion: "[In Street] we concluded that 'the constitutionally guaranteed freedom… to express publicly one's opinions about our flag, [includes] those opinions which are defiant or contemptuous' " (319). Brennan
implies that this case is relevant to Johnson's because the defendant was also burning a flag in protest and then had his conviction overturned because "people are allowed to express opinions that are defiant or contemptuous" (319). Rehnquist's opinion, however, uses the same precedent to establish differences: "Since the defendant might have been convicted solely on the basis of his words, the conviction could not stand, but it expressly reserved the question whether a defendant could constitutionally be convicted for burning the flag…" (323). Rehnquist argues that although there are clear similarities between the cases, the court's prior decisions had "left open the question that the Court [resolves with the Johnson decision]" (323). When examining Brennan's use of past precedent in isolation, it appears as if the court had already decided this issue: case law was in support of his conclusion. Rehnquist's argument critiques this by showing a significant difference between the two cases. After examining both of their arguments, it becomes apparent that the laws of our nation are not black and white, but rather very flexible, depending upon who interprets them. This can again be seen when both of the justices look to the First Amendment to determine the constitutionality of prohibiting flag burning.
However, the First Amendment, which guarantees an individual the right to free speech, does not offer a clear answer because the justices’ interpretations of what constitutes free speech differ.
The First Amendment literally forbids the abridgment only of 'speech,' [but past Supreme Court Decisions, Brennan argues, have interpreted the First Amendment to protect people if their conduct is] 'sufficiently imbued with the elements of communication to fall within the scope of the First and Fourteenth Amendments.' (317)
This conduct is often referred to as expressive conduct that is "content-based." A key issue of contention between Rehnquist and Brennan is whether the law against flag burning is a content-based restriction which "restrict[s] communication because of the message conveyed" or a content neutral restriction that "restrict[s] communication without regard to the message conveyed." (Chicago v. Mosley).
Brennan argues, using past precedents, that flag burning should be protected because it is content based: "Our decision in Boos v. Barry tells us that this restriction on Johnson's expression is content based. [We held in Boos] that the emotive impact of speech on its audience is not a secondary effect" (318) if it "regulates speech due to its potential primary impact” (O’ Connor). He is arguing that since the direct message that flag burning communicates is the reason for the prohibition and not the side effects, such as violence or traffic congestion, then the prohibition is "content based" and unconstitutional. To elaborate on this idea the author of the majority opinion in Boos v. Barry wrote:
[A city is allowed to ban] theaters that specialize in adult films. [This is not prohibiting expressive conduct because the regulation is created to prevent the secondary effects of the movie theater,] effects that are almost unique to theaters featuring sexually explicit films, i. e., prevention of crime, maintenance of property values, and protection of residential neighborhoods [and not to prevent the content itself]. (O’ Connor)
The preceding analysis, however, does not release Brennan from the underlying assumption of his argument: flag burning is a form of speech. Brennan attempts to support this argument when he writes: “[Since the flag is] a symbol with a determinate range of meanings,” and symbols are “a substitute for the written or spoken word,” then flag burning is indeed expressive speech (319).
Rehnquist critiques Brennan’s argument by undermining its key assumption that the burning of a flag is expressive speech. He argues an individual cannot "speak" by burning the flag, because the flag means different things to different people: "The American flag, then, throughout more than two hundred 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” (322). Here Rehnquist suggests that for the past two hundred years, the flag has represented our nation, implying there is a natural abhorrence to the burning of the symbol of our nation, while also suggesting that by burning our nation’s symbol the flag burner fails to communicate anything because it does not represent anything concrete or tangible. He furthers this argument when he examines Johnson's speech: "Far from being a case of 'one picture being worth a thousand words,' flag burning is the equivalent of an inarticulate grunt or roar that it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others" (322). Here he suggests that most people who burn a flag will not do so to send any particular message, but only to antagonize, because flag burning reaches people on an emotional level and not on a logical one. Ironically, Rehnquist himself uses emotional appeals to support his own argument.
By swaying our opinion with emotional appeals and faulty methods of persuasion, both Rehnquist and Brennan attempt to persuade the reader that their opposing conclusions about the constitutionality of prohibiting flag burning is right. In the preceding paragraph, Rehnquist compares the communicative impact of flag burning to "an inarticulate grunt or roar." These words bring to mind pictures of animals, which consequently imply that Johnson, who is burning the flag, is an animal. He continues the personal attack on Johnson by suggesting that the only thing a flag burner accomplishes by burning a flag is antagonizing others. Brennan also uses similarly faulty methods of persuasion. This can be seen when he first implies that two possible methods for preventing flag burning are mutually exclusive: "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" (321). This statement suggests that a person can do one or the other, but that doing both is impossible. This is not always true and is a faulty method of persuasion. To further develop this argument, he paints a vivid image: "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 saluting the flag that burns" (321). No matter which side of the argument you are on, this visual image plays to the emotions. Americans saluting a burning flag is an extremely powerful image designed to persuade the audience that this is, indeed, an effective solution, even though a solution’s emotional appeal does not prove its effectiveness.
Rehnquist, however, responds by also using a faulty method of persuasion and an emotional appeal. He first quotes the majority opinions discussed in the preceding paragraph, and then he attacks its author:
The Court's role as the final expositor of the Constitution is well established but its role as a platonic guardian admonishing those responsible to public opinion as if they were truant school children has no similar place in our system of government. (324)
Calling Brennan and the others in the majority opinion a "platonic guardian" is an indirect personal attack. This is an attempt to suggest that the court is so focused on ideals that it loses all touch with reality and the real world in which we live. This is a faulty method of argumentation because it focuses on the author and ignores the issue in contention. Additionally, the idea of "admonishing those responsible to public opinion," the "truant school children," is designed to touch the reader on an emotional level. Nevertheless, there is an underlying point to the attack: the country must balance the rights of the majority of Americans with the rights of an individual. He shifts the focus from the rights of an individual to burn a flag to the rights of society: "The highest purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people––whether it is murder, embezzlement, pollution, or flag burning" (324). Here he effectively groups “flag burning” with words that have extremely negative connotations, such as "murder," or "embezzlement." Although the connection between the words is absurd and faulty, it does not invalidate his main point, which he further develops by revisiting the battle cry of the American Revolution: " 'No taxation without representation. “[This] animated those who revolted against the English Crown to found our nation––the idea that those who submitted to government should have some say as to what kind of laws would be passed" (324). This quotation is designed to appeal to Americans' sense of patriotism, and bring to mind memories of American troops dying on the battlefield to uphold this principle: the majority has a voice in the laws of our nation.
Brennan, unlike Rehnquist, focuses on the rights of the individual over the rights of society: "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 find the idea itself offensive or disagreeable" (319). He also appeals to our sense of patriotism, and returns to the American revolution to support this claim: "Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the nation's resilience, not its rigidity, that Texas sees reflected in the flag" (321). This is a very powerful visual image that appeals to our sense of patriotism, our sense of resilience against England. This is also, however, somewhat faulty because it is unclear as to how exactly (other than in the literal sense, flags blow in the wind) America was not rigid in demanding its freedom from England. The Constitution, unfortunately, does not identify how to balance Rehnquist’s and Brennan’s opposing principles.
Relying upon the same Constitution and past precedents, Brennan and Rehnquist came to two opposing positions. They argued using similar methods: emotional appeals, patriotic appeals and different faulty methods of persuasion. Each argument is equally fallacious and equally valid. The distinction lies with each justice's interpretation of the underlying assumptions. Rehnquist's argument rebutted Brennan's and showed that although at first it appears the answer can be found within the Constitution, there is no clear answer, and the Court’s 5-4 decision reflects this. Let Johnson v. Texas serve as a reminder of the importance of who the president appoints to serve on the Supreme Court, since the justices’ understanding of the Constitution is subjective––their beliefs and values weigh heavily upon their interpretations. When choosing the next president, in addition to looking at the key issues he or she presents, stop and consider the Supreme Court justices that this candidate may appoint, for a President’s term comes and goes, but a Supreme Court justice’s appointment lasts a lifetime.
Note: all documentation that only includes the page number refers to the Rehnquist and Brennan opinions.
“Chicago v. Mosley.” 1991. World Wide Web. 3 March 2001. World Wide Web.
O’ Connor, Sandra D. “Boos v. Barry.” 22 March 1988. World Wide Web. 3 March 2001.
Rehnquist, William H., Brennan, William J. “A Casebook on the Law and Society: What Rights
Do the First and Fourth Amendments Protect?” Current Issues & Enduring Questions: A Guide to Critical Thinking and Argument with Readings. Ed. Sylvan Barnet and Hugo Bedau. 5th ed. Boston: Bedford/St Martin’s, 1999. 316-324.