Question: Is flag burning protected as symbolic speech by the First Amendment?
1. Can the government prohibit the act of flag burning as an infringement on the Free Speech Clause of the First Amendment?
Texas
Affirmative. Yes.
The Court has interpreted the First Amendment to grant a higher level of protection to speech than it grants to conduct because not all conduct is considered a form of speech. The First Amendment does protect symbolic speech, but some actions do not always rise to the level of “symbolic speech” so as to require protection under the First Amendment. Flag burning is the destruction of a symbol of national unity. Even if the flag that is destroyed is private property, the government has a legitimate interest in regulating its protection because of what the flag represents to the nation. Lines must be drawn when it comes to expressive speech to make sure that otherwise criminal conduct is not couched in “First Amendment” terms.
Johnson
Negative. No.
The Court has recognized that the First Amendment protects certain forms of symbolic speech. Flag burning is such a form of symbolic speech. When a flag is privately owned, the owner should be able to burn it if the owner chooses, especially if this action is meant in the form of protest. So long as public and/or the property of others is not destroyed in the process (or there is a danger to others by setting the flag on fire), the government cannot prohibit this action without infringing upon free speech rights.
2. Should flag burning as symbolic speech be prohibited as an exception to the First Amendment’s free speech protections?
Texas
Affirmative. Yes.
Even though the First Amendment protects symbolic speech, an exception should be made to prohibit burning of the flag. The flag is a symbol of national unity that represents the ideals for which the United States stands. Moreover, it honors those who died in defense of this country. The protection of these concepts, as represented in the flag, constitute a compelling governmental interest that justifies a ban on flag burning/desecration.
Johnson
Negative. No.
As noble as the argument is, the First Amendment does not recognize an exception for prohibitions on burning the flag. When the defendant burned the flag in this case, he was making a political statement, i.e., he did not agree with the policies of the United States government. Moreover, as ironic as it sounds, by being able to burn the flag, the defendant (and other persons like him) is actually honoring the values the flag is meant to protect. For instance, the flag represents freedom of speech, including giving protections to those who desecrate it. On a more practical note, why should this one action be excepted from the First Amendment’s protections? Could, or should, other exceptions be made? Who would make these decisions?
3. Should the allowance of flag burning depend upon the reasons for, and potential reactions to, the act?
Texas
Affirmative. Yes.
The Texas Act permits the destruction of worn-out flags in a prescribed manner. The Act also acknowledges that prosecutions of flag-burning only occur when this action would be likely to offend others. Although it is argued that the state may have an absolute right to prohibit flag burning, Texas has chosen to limit its proscriptions. For instance, it would permit private burnings, perhaps even in the midst of like-minded individuals. It does not, however, permit flag burning in public when this would be likely to incite others. The state realizes that this action triggers strong emotions in some and may lead to violence. The State has a compelling interest in prohibiting flag burning in order to keep the peace. The State permits respectful burnings of worn-out flags because there is not much chance that this action will lead to violent outbursts.
Johnson
Negative. No.
The Texas Act clearly discriminates on the basis of viewpoint. It allows respectful, but not disrespectful, destruction of the flag. Its antipathy toward disrespectful destruction of the flag is further highlighted by the fact that it prohibits actions that are likely to offend others. First Amendment rights cannot be based on the reaction of others. The First Amendment is meant to protect unpopular ideas. The First Amendment would be undermined if unpopular speech were disallowed.
United States v. Eichman, 496 U.S. 310 (1990)
The Johnson decision only affected a Texas state law. In the wake of the decision, the federal government enacted a law that also prohibited flag burning. In order to try to get around constitutional challenges, the law prohibited all types of flag desecration, with the exception of burning and burying a worn-out flag, regardless of whether the action upset others. The Supreme Court held that this did not cure the constitutional defect and the same 7-3 majority from Johnson held that the law still impermissibly discriminated upon viewpoint and struck it down.