A Blaze of Glory? The legal history behind flag burning as free speech

Happy July 4th!  Perhaps nothing else symbolises America’s Independence Day quite like the American flag, also known as “Old Glory.” So what better day to consider the fascinating legal history which surrounds burning the American flag in protest?

This is my second blog post dedicated to exploring important United States Supreme Court cases on free speech. The first post, Regulating the Raunchycovered the basics of free speech protected by the First Amendment, together with the regulation of pornography under Miller v. California (1973). This post covers the history of flag protection in the United States, and the cultural shifts that led to Texas v. Johnson (1989).

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Unrest followed by Unity: the Revolutionary War and Civil War

Adopted on 14 June 1777, the American flag represents an incredibly wide variety of concepts, sentiments, and political positions. For many in the United States and abroad, the flag symbolizes normatively “good” things in Western culture, such as democracy, freedom, liberty, and self determination.

When considering why the American flag is such a potent symbol, it might be helpful to consider that the U.S. Civil War (1861-1865) not only revived that patriotic attachment to the flag, but expanded and intensified it, fostering a spirit of reverence and devotion (National Museum of American History). By the late 1800’s, flag protection movements had swept across the country in reaction to perceived commercial misappropriation on the one hand, and politically motivated abuse of the flag on the other. 

By 1932, each State had adopted some form of flag protection legislation, which prohibited “publicly mutilating, trampling, defacing, defiling, defying or casting contempt, either by words or by act, upon the flag” (emphasis added).

The Vietnam War was a watershed moment for political protests.

Following the Second World War, American prosperity and patriotism boomed. But by the 1960’s however, the counterculture movement began, marked by widespread revolution against established norms and conventions. In particular, the increasing unpopularity of the Vietnam war led many to question the infallibility of American foreign policy. After American bombing campaigns against North Vietnam intensified in 1965, small uprisings of peace activists and intellectuals on university campuses soon gained national prominence.

Anti-Vietnam war demonstrators burn the flag in Central Park, 1967.

1984: Counterculture against Ronald Reagan.

The Youth International Party or “Yippies” were one such offshoot of the countercultural revolutionaries of the free speech and anti-war movements of the 1960s. During the 1984 Republican National Convention in Dallas, Texas, the Yippies and like-minded groups protested against President Reagan, including his administration’s involvement in Grenada and Nicaragua.

Dozens of protesters were arrested, including Gregory Lee Johnson, whose participation during the protests involved the burning of an American flag. “We wanted to do as much as possible to puncture the whole chauvinistic, Rambo-istic atmosphere around that convention,”  Johnson later recalled.

Johnson was therefore charged with violating Texas Penal Code 42.09(a)(3), which prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger or offense in others. Johnson was initially sentenced to one year in jail, and assessed a $2,000 fine. After a series of appeals, the case was brought before the Supreme Court for final adjudication in 1989.

The decision and legal reasoning behind Texas v Johnson

In a 5-4 decision, the Supreme Court held that Johnson’s conviction for flag desecration was inconsistent with the First Amendment, which states inter alia that “Congress shall make no law abridging the freedom of speech.” Of course, the act of burning something is not written or spoken speech (also known as “pure speech”). So how can burning the flag possibly be construed as speech protected by the First Amendment?

The Court held that where the medium or conduct itself is the message, it is a special form of protected speech, known as “symbolic speech.” Put differently, symbolic speech is a nonverbal communication that takes the form of an action, in order to communicate a specific belief or position. 

To be considered symbolic speech, the action in question must be a form of expressive conduct. This requires: (1) that the individual intended to communicate a message, and (2) that the audience was likely to understand the communication.

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Joey Johnson (left) and his lawyer, William M. Kunstler – a civil rights activist known for his politically unpopular clients

The Supreme Court agreed that Johnson burned an American flag as a political demonstration that coincided the Republican party’s renomination of Ronald Reagan for President. The expressive, overtly political nature of Johnson’s action was both intentional and overwhelmingly apparent. At his trial, Johnson explained that he burned the flag because “a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time.”

The Court found that Texas’ focus on the precise nature of Johnson’s expression violated the principle that the government may not prohibit expression simply because it disagrees with its message. This core doctrine of American free speech is not dependent on the particular mode or method in which one chooses to express an idea.

The judgment concluded with what I consider to be a particularly powerful point made by Justice Brennan:

We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. 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.

The Impact of the Supreme Court’s decision. 

It is important to note that the Supreme Court however did not say that the government was prohibited from regulating symbolic speech. State legislatures can indeed constrict symbolic speech, provided that the law both: (1) reflects an important interest unrelated to suppressing the actual message (i.e., the law prohibits the non-communicative aspects of the act in question) and (2) is narrowly tailored to that substantial government interest. 

Because flag protection statutes in 48 of the 50 States did not meet this test, the decision in Texas v Johnson effectively invalidated those laws.

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Gregory “Joey” Johnson holds a flag, June 1989. (AP Photo/David Canto via the Smithsonian)

Lingering controversy

Although Texas v Johnson was decided 30 years ago, public sentiment regarding the treatment of the US flag remain controversial as ever.

Shortly after his election in 2016, President Donald Trump tweeted that “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” And only two weeks ago (15 June 2019) Trump tweeted that he was “All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!”

While it is true that burning the flag is seen by many as provocative and disrespectful, the right to do so in certain circumstances is protected by settled law. As Justice Brennan said: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.” On that final note, if you happen to see an American flag on this 4th of July, spare a thought for its special role in shaping and reaffirming our rights of free speech!