The dissent that would’ve criminalized flag burning

In Dissent is a recurring series by Anastasia Boden on Supreme Court dissents that have shaped (or reshaped) our country. 

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

I. America the defiant 

On Aug. 22, 1984, about 100 protesters marched down the streets of downtown Dallas during the Republican National Convention decrying President Ronald Reagan’s policies. At first, the protesters conducted a “die-in,” during which they fell to the floor and moaned for several minutes to mimic the effects of a nuclear attack. Next, they entered a bank and tore up deposit slips and dumped out potted plants. They continued down the block, conducting die-ins and repeating chants until they reached City Hall, where Gregory Lee Johnson took a flag that a fellow protester had removed from a nearby flagpole, doused it with kerosene, and set it on fire.

No one was physically harmed during the protest, but many were offended. One bystander, a Korean War veteran, took the ashes of the flag home and buried them in his backyard. Another, an officer who had been assigned to monitor the protest, ordered Johnson arrested. Out of the 100 or so participants, Johnson was the only protester charged with a crime.

Johnson was eventually convicted under Texas’ flag desecration law, which prohibited anyone from intentionally or knowingly desecrating a flag in a way they knew would seriously offend someone else. He was sentenced to a year in jail and fined $2,000. While Texas maintained that it had an interest in preserving the flag as a symbol of national unity, the Texas Court of Criminal Appeals reversed Johnson’s conviction, saying the government “cannot mandate by fiat a feeling of unity in its citizens,” and that its attempt to do so violated the First Amendment.  

II. Art or not?

Texas appealed to the Supreme Court. In its brief, it argued that flag burning was not expressive speech and therefore not covered by the First Amendment.

One of the many people who disagreed was prolific American artist Jasper Johns, who used the flag as a starting point for many of his works. His 1958 piece, Flag, sold for over $110 million in 2010 – the most expensive piece of art sold by a living artist at the time. Johns filed a brief in support of Johnson, joined by two artists who had been convicted of violating a New York anti-desecration statute for organizing an exhibit based around the American flag. Together, the artists argued that even mere unconventional uses of the flag in art might seem disrespectful or offensive to others, but were protected by the First Amendment nonetheless.

They pointed to Paul Conrad’s political cartoon, “The American Way of Death,” which depicted a razor blade cutting lines of cocaine on a flag, and a piece in which an artist had replaced the stars in the union with photographs of such well-known Hollywood personalities as Mickey Mouse, Johnny Carson, and Elizabeth Taylor.

Symbols like the flag, they said, are used by different people to mean different things – but they represent underlying principles even if people “misuse” them. Quoting Justice Robert Jackson’s masterful opinion in West Virginia v. Barnette (a case explored in an earlier column), the artists concluded that “freedom to differ is not limited to things that do not matter much.”

III. Scalia has some fun

At oral argument, Texas abandoned its theory that flag burning was not protected expression. Instead, it argued that it had sufficient reason to ban that expression: preserving the flag as a symbol of national unity and preventing breaches of the peace. If the state could not control people’s use of the flag, it might lose its symbolic effect. And flag desecration is so inherently inflammatory that it was necessarily likely to incite violence.

Justice Antonin Scalia pushed back, quipping, “I think when somebody [uses the flag offensively], the flag becomes even more a symbol of the country.” Thus, the Texas law didn’t preserve the flag as a symbol of the country; it simply preserved respect for the flag, which the state had no business doing. (Scalia clearly had fun at oral argument, eliciting good-natured laughter in the courtroom eight different times.)

The government countered that the statute was not about mandating respect because people could be convicted regardless of whether they intended to respect or disrespect the flag, so long as they did it in a way they knew would offend someone.

Johnson’s attorney was none other than William Kunstler, dubbed by the New York Times as the country’s “most controversial” lawyer – and the same man who represented the Chicago Seven and the Weather Underground. Between exchanging jokes with the justices (causing Thurgood Marshall at one point to ask whether he was going to get back to the argument), Kunstler emphasized the far-reaching effects of Texas’ arguments. Flags are everywhere and used by everyone, he said: “I notice that Barbara Bush wore a flag scarf, for example. There are flag bikinis, there are flag everything. There are little cocktail flags that you put into a hot dog or a meatball and then throw in the garbage pail. They’re flags under the Texas statute.”

Texas’ law made all of these uses subject to prosecution, depending on the state’s conclusion that they were likely to offend someone. What’s more, he said, Texas was wrong to equate causing serious offense with necessarily inviting violence.

This wasn’t the court’s first time addressing people’s uses and abuses of the flag. In the 1969 case of Street v. New York, the court overturned the conviction of a World War II veteran who, after hearing of the assassination of a civil-rights leader, said “We don’t need no damn flag” while setting one on fire. But that decision rested on his words, not his conduct. In the 1974 case of Smith v. Goguen, the court struck down a Massachusetts law against treating a flag “contemptuously” as unconstitutionally vague after it was used to jail a teenager for six months for simply wearing a flag patch on the seat of his pants. And in the 1975 case of Spence v. Washington, the court invalidated a flag-misuse statute as applied to a college student who hung a flag with a peace symbol in the wake of the Kent State shootings, but it left open the broader question of whether the government could act to preserve the flag’s physical integrity. Texas’ attorneys tried to argue that its law was different than those the court had previously struck down, but five justices disagreed.

IV. 5-4

Justice William Brennan wrote the opinion, joined by Justices Thurgood Marshall, Harry Blackmun, Scalia, and Anthony Kennedy. The majority concluded that even though the government can more freely regulate conduct than speech, it cannot regulate conduct based on its expressive elements.

Here, the government targeted flag burning because of its message, the majority concluded. Texas said it wanted to prevent breaches of the peace, but no breach of the peace had actually occurred. Bystanders had been offended, but “the function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” As recognized in the famous case of (falsely) shouting-fire-in-a-crowded-theater, the government can stifle speech when it is directed at inciting violence and likely to produce such violence, but it cannot “assume that every expression of a provocative idea will incite a riot.”

The justices also rejected Texas’ other arguments. Texas didn’t just assert a role in preserving the flag as a symbol of our nation; it claimed it could preserve the flag as a symbol of unity. But “[i]f 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.” 

Brennan concluded: “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.”

Years later, Scalia made clear that, “If it were up to me, I would put in jail every sandal‑wearing, scruffy‑bearded weirdo who burns the American flag. But I am not king.” And the Constitution required tolerating even speech he did not like.

V. The dissenters

Chief Justice William Rehnquist dissented, joined by Justices Byron White and Sandra Day O’Connor. Justice John Paul Stevens wrote a solo dissent. O’Connor’s vote was surprising given that, at oral argument, she had asked Texas’ attorney whether “Patrick Henry and any of the Founding Fathers ever showed disrespect to the Union Jack” and whether they “had in mind then in drafting the First Amendment” that flag-burning “should be a prosecutable offense.”

Rehnquist’s dissent was notable for its stern tone and unusual reliance on poetry. His dissent began, “In holding this Texas statute unconstitutional, the Court ignores Justice Holmes’ familiar aphorism that ‘a page of history is worth a volume of logic.’” He then walked through the symbolic importance the flag has played in our nation’s history, as evidenced by Ralph Waldo Emerson’s poem “Concord Hymn,” and Francis Scott Key’s national anthem, which Key wrote after seeing the flag still standing over Fort McHenry after a British attack during the War of 1812.

Rehnquist even included the full text of John Greenleaf Whittier’s moving Civil War poem, “Barbara Frietchie,” which described the heroism of a woman who raised the flag in defiance of Confederate soldiers. He further described the raising of the flag over Iwo Jima, the use of the flag during the Korean War, and so on.

In Rehnquist’s view, Johnson was free to say anything he wished, but “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.” In other words, burning a flag wasn’t sophisticated enough expression to warrant protection. Johnson wasn’t being punished because people were “profoundly opposed” to his message; he was being punished because his speech was valueless.

Rehnquist then turned to the majority opinion, calling it a “regrettably patronizing civics lecture, presumably addressed to the Members of both Houses of Congress … and the troops fighting under that flag in Vietnam who objected to its being burned.” He said the entire point of democracy is to allow the people to prohibit things they find offensive, whether that be “murder, embezzlement, pollution, or flag burning.”

He concluded with metonymy, a rhetorical device in which the writer uses an attribute of a thing to represent the thing itself: “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.”

Rehnquist’s statements in favor of judicial minimalism and deference towards the legislative branch were typical of his style. His charged rhetoric was much less so. Typically, the chief justice was terse and direct (a fact later belied by the fancy gold striped sleeves on his judicial robe, which he added in 1995). But perhaps his opinion was colored by his history. He had served in the U.S. Army Air Forces in World War II and attended Stanford University and Law School on the G.I. Bill, graduating from law school first in his class (O’Connor, who rejected Rehnquist’s marriage proposal, graduated third). To him, the flag was not just a representation of the country, but a piece of the country itself.

Justice Stevens wrote a separate dissent, arguing that given the flag’s “unique value,” the state was justified in prohibiting people from destroying it – which he characterized as conduct rather than speech. Stevens, a World War II veteran, likened burning the flag to graffitiing the Lincoln Memorial. He maintained that the decision was wrongly decided for the rest of his life.

VI. Modern implications

The tension between offense and free expression continues to animate First Amendment cases. After Johnson, Congress immediately passed the Flag Protection Act of 1989, outlawing desecration of the American flag. The very next year, the court struck that down in United States v. Eichman.

More recently, in the 2017 case of Matal v. Tam, the court invalidated a ban on “disparaging trademarks” by the U.S. Patent and Trademark Office, after an Asian-American band called The Slants sought to reclaim the slur. In doing so, the court reaffirmed that offense is not a constitutional basis for censorship.

Even President Donald Trump’s recent executive order on flag burning, which directs authorities to use preexisting laws (such as those criminalizing property damage) to prosecute flag burning and instructs officials to weigh flag desecration in immigration decisions, shows that the urge to criminalize offensive expression has not disappeared. That order signaled hostility toward Johnson without squarely contradicting it – a symbolic move itself (Vice President J.D. Vance has explicitly said that he agrees with Justice Rehnquist’s dissent).

The American flag has always carried more than one meaning. For some, it is sacrifice and perseverance; for others, it is dissent and disillusion. Johnson affirmed that the government cannot dictate which meaning prevails for each individual. Until that changes, Americans remain free to decide for themselves whether to raise the flag, wear it, parody it, or even burn it.