It is known that judicial decisions in countries with precedent law are recorded and stored, since they, as precedents, form the basis of subsequent decisions. Thus, the US Supreme Court has repeatedly recognized the legality of restrictions or even the complete prohibition of such types of “speech” as obscenity, child pornography, propaganda, or instigating statements that threaten to immediately and inevitably turn into violence or illegal actions (Abrams 22-26; Smith 8-11).
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The First Amendment does not mean that freedom of speech or press in the United States is absolute and is not subject to any restrictions. Some types of speech, i.e., ways to exercise freedom of speech, are strictly prohibited, while others are subject to regulation depending on where the author wants to make this speech, print, or “depict” (Yassky 1671-1672). However, the Texas v Johnson case, considered by the US Supreme Court thirty years ago, is on the list of Supreme Court decisions that have had the greatest impact on American society regarding the application of the First Amendment.
This decision is that (in legal terms) that symbolic acts, even those of a violent nature, have a right to exist because they are a manifestation of freedom of speech protected by the First Amendment to the US Constitution. In ordinary language, it means that guarantees of freedom of speech in the USA include the right to stomp or burn the American national flag.
In August 1984, the Republican Party National Convention was held in Dallas, Texas, which was electing a candidate for president of the United States. As always, a crowd of protesters against the policies of Ronald Reagan gathered near the convention hall, including Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade – a unit of the Revolutionary Communist Party of the United States. About a hundred protesters with slogans moved from the convention hall towards the City Hall.
Protesters walked through the streets of the city, playing protest scenes against nuclear weapons. One of the participants removed the American flag from the pole and handed it to Johnson. The procession approached the city government building, where Johnson unfolded the flag and set it on fire, chanting: “Red, white and blue, we spit on you, you stand for plunder, you will go under” (Kurtyka). As witnesses later claimed, many of them were offended by the performance of Gregory Lee, but no one was injured and or felt any threats in his behavior (Krüdewagen 680-681).
The police arrested Gregory Lee and the court found him guilty of violating Article 42.09 (a) (3) of the Texas Criminal Code, which prohibited desecration of revered objects and sentenced him to one year in prison and a fine of $2,000 (Fishman 47-49). Johnson appealed to the Texas Court of Appeals, where he lost.
His next appeal was directed to the Texas Criminal Appeals Court, which ruled in favor of Johnson, stating that Texas does not have the right to punish citizens for burning the flag, as such an act is a symbolic speech and, therefore, is protected by the First Amendment to the Constitution. The court also noted that burning the flag did not entail any public disturbance or even threaten with it (Goldstein 40).
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After Johnson’s victory in the Texas Criminal Appeals Court, Texas’s state representatives said that maintaining order and protecting the symbol of national unity is more important than the right to freedom of speech (Fishman 50). They appealed the decision of the Court of Appeal to the US Supreme Court. The Supreme Court upheld the annulment of the first-instance conviction; however, the opinions of judges were divided.
Most of them felt that in the case of burning the national flag, the main reason is the motive for the act. If Johnson had committed his action for any mercantile motives or cynically violated public order for nihilistic reasons, his motives could have been the basis of the crime (Smith 52-60). But, in this case, at the core of Johnson’s act, as the Supreme Court considered, there were his views that do not accept the existing order of things in the state, namely, partial rejection of the policy of the US Presidential Administration. This motive, according to the court, distinguishes a civil action from a crime (Texas v. Johnson; Goldstein 34). Interestingly, this decision led to the repeal of laws prohibiting the burning of the American flag in 48 US states.
According to Supreme Court Judge Brennan, one of the fundamental principles of the First Amendment is that the government cannot prohibit the expression of any ideas even when society finds these ideas offensive or unacceptable (Miller 20-21). The Court noted that the First Amendment protects the fundamental principle that authorities have no right to prohibit people from expressing their views simply because someone considers the chosen way of expressing their opinion offensive to themselves. However, some judges said that freedom of expression and the way of expression were not the same things (Barker 53-54). The requirement to choose any form of protest, except for those that offended the feelings of other people, was not such a serious limitation.
Indeed, at the trial of the Texas state court of the first instance, several witnesses stated that they were offended by Johnson’s burning of the national flag and the court, recognizing Johnson as guilty, proceeded from the fact that “when performing this act, the performer knew that he was insulting the witnesses of his act and those who will later find out about it” (Goldstein 54). Three months after the hearing of the parties, the Supreme Court made a decision. With five votes to four, the Court ruled that the Texas Flag Burning Act violates the constitutionally guaranteed freedom of speech (Texas v. Johnson). Brennan wrote the majority’s decision, which was joined by panel members Marshall, Blackman, Scalia, and Kennedy.
Kennedy also presented a note on concurring opinions, but in order to note that “sometimes we have to make decisions that we ourselves don’t like” (Smith 32). Supreme Court President Rehnquist, who wrote a dissenting opinion, said that Texas state law was constitutional and was joined by members of the board White and O’Connor. Collegium member Stevens voted along with this minority, but explained his decision in a separate dissenting opinion, noting that the national flag is not only a symbol of statehood and national unity but also expresses ideas and characterizes the society that has chosen this problem (Amar 42).
After that, there were several attempts in Congress to pass an amendment to the Constitution protecting the national flag, but each time the Senate rejected it. Opponents of the ‘innovation’ believe that the restriction of the First Amendment cannot be allowed. Lawmakers in the United States have repeatedly tried to impose penalties for the desecration of a state flag, but so far all attempts have failed.
In 2016, Johnson again burned the flag during the Republican Party convention in Cleveland, which nominated Donald Trump for the presidency. During this action, Johnson was arrested; he later obtained $ 225,000 in compensation from the Cleveland authorities for an unjustified arrest (“Cleveland to pay $225K to 2016 RNC protester Gregory Johnson”).
On November 29, 2016, President Donald Trump proposed punishing by the deprivation of citizenship demonstrators who burned the American flag during the protests. In response, the media rained down on him with accusations of violating the constitution, and the protesters themselves burned several more flags in response. Many media outlets claimed that the United States Supreme Court when it heard the Texas v. Johnson case in 1989, found that the right to burn a flag was protected by the first constitutional amendment, as it was a kind of expression of freedom of speech.
Indeed, as in 1989, the U.S. Supreme Court ruled that flag burning is permitted under the First Amendment, which guarantees freedom of speech, to change a Supreme Court ruling, either amending the First Amendment or initiating a re-examination of the matter by the Supreme Court are needed. In view of the acute social and political problems faced by American society in the last decade, unlikely that a serious resumption of discussion about the acceptability of burning or other desecration of the national flag can be expected.
However, in addition to the “black letter law,” one should recall the concept of public benefit or harm. In no country in the world desecration of the national flag is approved (Allen 15). Attitude to state symbols is an indicator of the level of patriotism of citizens, their commitment to national values. Accepting the desecration of the national flag as quite an acceptable action erodes these values and offends the memory of the fighters for American colonies’ independence in the Revolutionary War.
This is the flag of people who fought for the country so that other people have the right to freely express their thoughts. Americans are already accustomed to the desecration of the flag, which often occurs during protests in the Islamic world. The desecration of the flag by their own citizens “helps” the Islamists and other representatives of extremist movements in the formation of a disrespectful attitude to traditional American values, on which the country’s greatness and its position in the international arena are largely based.
In our opinion, the Supreme Court made a serious ‘strategic’ mistake, allowing the humiliating of national symbols, and the implications of it can be seen today. Of course, the founding fathers considered it necessary to limit the power of the government. The First Amendment was ratified in order to remove the widespread concern about the hypothetical possibility of the government suppressing political dissent.
However, one thing is the struggle for civil rights, when the courts defended the right of Martin Luther King to protest against injustice and racial segregation, without calling for violence. A completely different matter is today’s racist and insulting statements by representatives of “white nationalism.” Hate speech is fully protected by the First Amendment, which the Supreme Court confirmed with its statement in 2017. Today, racist and insulting statements are not uncommon on the Internet, being protected by the First Amendment.
In general, almost all the freedoms guaranteed by the First Amendment now cause much more controversy than before. This is not surprising given the decisions of the Supreme Court on cases such as Texas v Johnson. Obviously, judges who voted in favor of Johnson did not take into account the far-reaching consequences of their decision and were unlikely to fully realize their responsibility as creators of a precedent in such cases. Meanwhile, the outcome of this case can be considered a kind of catalyst for upsetting the balance between freedom and public and even national security.
Abrams, Floyd. The Soul of the First Amendment. Yale University Press, 2018.
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Allen, David S. Freeing the First Amendment: Critical Perspectives on Freedom of Expression. NYU Press, 1995.
Amar, Vikram David. The First Amendment, Freedom of Speech: Its Constitutional History and the Contemporary Debate. Prometheus, 2009.
Barker, Nicholas. “The Constitutionality of Flag Burning: Hate or Free Speech? An Analysis of Texas v. Johnson.” Hinckley Journal of Politics, Spring 2001, pp. 49-56.
Brennan, William J., Jr, and Supreme Court of the United States. U.S. Reports: Texas v. Johnson, 491 U.S. 397. 1989.
“Cleveland to pay $225K to 2016 RNC protester Gregory Johnson, for retaliation claims.” The Chandra Law Firm, LLC, 2019.
Fishman, Donald A. “The Flag burning Controversy and the Sui Generis Argument.” New Jersey Journal of Communication, vol. 9, Iss. 1, 2001, pp. 45-62.
Goldstein, Robert Justin. Flag Burning and Free Speech: The Case of Texas v. Johnson. University Press of Kansas, 2000.
Krüdewagen, Ute. “Political Symbols in Two Constitutional Orders: The Flag Desecration Decisions of the United States Supreme Court and the German Federal Constitutional Court.” Arizona Journal of International and Comparative Law, vol.19, no. 2, 2002, pp. 679-712.
Kurtyka, Brian M. “Recent Developments: Texas v. Johnson: Flag-Burning as Protest Protected within Context of First Amendment,” University of Baltimore Law Forum, Vol. 20, No. 1, 1989, Article 10.
Miller, Anthony. Texas V. Johnson: The Flag-Burning Case. Enslow Pub Inc., 1997.
Smith, Craig R. A First Amendment Profile of the Supreme Court. John Cabot University Press, 2011.
Yassky, David S. “Eras of the First Amendment.” Columbia Law Review, vol. 91, 1991, pp. 1699-1755.