Key Excerpts from the Majority Opinion
The case was decided 5 to 4.
Justice Brennan delivered the opinion of
the Court.
The First Amendment literally forbids
the abridgment only of "speech", but we have long recognized
that its protection does not end at the spoken or written
word. While we have rejected "the view that an apparently
limitless variety of conduct can be labeled 'speech' whenever
the person engaging in the conduct intends thereby to express
an idea," . . . we have acknowledged that conduct may be
"sufficiently imbued with elements of communication to fall
within the scope of the First and Fourteenth Amendments," . .
.
We have not automatically concluded,
however, that any action taken with respect to our flag is
expressive. Instead, in characterizing such action for First
Amendment purposes, we have considered the context in which it
occurred.
. . . Johnson burned an American flag as part - indeed, as
the culmination - of a political demonstration that coincided
with the convening of the Republican Party and its
re-nomination of Ronald Reagan for President. The expressive,
overtly political nature of this conduct was both intentional
and overwhelmingly apparent. . . .
The government generally has a freer
hand in restricting expressive conduct than it has in
restricting the written or spoken word. . . . It may not,
however, proscribe particular conduct because it has
expressive elements. . . .
It remains to consider
whether the State's interest in preserving the flag as a
symbol of nationhood and national unity justifies Johnson's
conviction.
. . . Johnson was not, we add, prosecuted for the expression
of just any idea; he was prosecuted for his expression of
dissatisfaction with the policies of this country, expression
situated at the core of our First Amendment values. . . .
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
finds the idea itself offensive or disagreeable. . . .
. . . To conclude that the government may permit designated
symbols to be used to communicate only a limited set of
messages would be to enter territory having no discernible or
defensible boundaries. Could the government, on this theory,
prohibit the burning of state flags? Of copies of the
Presidential seal? Of the Constitution? In evaluating these
choices under the First Amendment, how would we decide which
symbols were sufficiently special to warrant this unique
status? To do so, we would be forced to consult our own
political preferences, and impose them on the citizenry, in
the very way that the First Amendment forbids us to do. . .
.
There is, moreover, no
indication-either in the text of the Constitution or in our
cases interpreting it-that a separate juridical category
exists for the American flag alone . . . It is not the State's ends, but its
means, to which we object. It cannot be gainsaid that there is
a special place reserved for the flag in this Nation, and thus
we do not doubt that the government has a legitimate interest
in making efforts to "preserv[e] the national flag as an
unalloyed symbol of our country." . . . To say that the
government has an interest in encouraging proper treatment of
the flag, however, is not to say that it may criminally punish
a person for burning a flag as a means of political
protest.
We are tempted to say . . . that 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. 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-and it is that resilience
that we reassert today.
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 . . . 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 by saluting the flag that burns, no
surer means of preserving the dignity even of the flag that
burned than by-as one witness here did-according its remains a
respectful burial. We do not consecrate the flag by punishing
its desecration, for in doing so we dilute the freedom that
this cherished emblem represents.
Johnson was convicted for
engaging in expressive conduct. The State's interest in
preventing breaches of the peace does not support his
conviction because Johnson's conduct did not threaten to
disturb the peace. Nor does the State's interest in preserving
the flag as a symbol of nationhood and national unity justify
his criminal conviction for engaging in political expression.
The judgment of the Texas Court of Criminal Appeals is
therefore Affirmed.
Questions to Consider:
- According to this opinion, why does the First Amendment
protect the flag burning in which Johnson engaged?
- How would prohibiting flag burning prevent "breaches of
the peace?" Did the Court accept the State's argument to this effect?
- According to the Court, Texas asserted an interest in
preserving the flag as a symbol of national unity. How does
the Court respond to this assertion?
- Why does the Court say that the flag's position as a
symbol will be strengthened, not weakened, by their decision
in this case?
- How does the Court recommend that supporters of the flag
respond to those who desecrate
it?
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