Texas vs. Johnson The Flag-Burning Case Jennifer Watson HIS 303: The American Constitution Prof. Jill Walsh October 10, 2009 The American flag is held near and dear in many people’s hearts. Most Americans see whether it is being saluted at a sporting event or pledged to at the beginning of a school day, the flag as an icon worth fighting and dying for. Since the American flag was created over 200 years ago, it has been a symbol of hope, freedom and pride. Even though the American flag has a long and glorious history, there are some moments when the flag has been under attack even by its own people.
In 1989, the Supreme Court ruled in the case of Texas vs. Johnson that the First Amendment would protect burning the flag. During the 1984 Republican National Convention, a man named Gregory Lee Johnson participated in a political demonstration. The protesters were demonstrating against President Reagan’s administration and certain Dallas-based corporations, where the Convention was being held.
“They marched through the streets, shouted chants, and held signs outside the offices of several companies. At one point, another demonstrator handed Johnson am American flag taken from a flagpole outside one of the targeted buildings. (Wikipedia, 2009) When the demonstrators got to the City Hall, Johnson unfurled the flag and set it on fire. While no one was hurt, many witnesses were extremely insulted and upset at seeing their country’s flag burn to ashes. “Of the approximately 100 demonstrators, Johnson alone was charged with a crime. The only criminal offence with which he was charged was the desecration of a venerated object in violation of Tex. Penal Code Ann. 42. 09(a)(3)(1989). ” (Apel) Johnson fought his conviction by turning to the highest court in the state of Texas, which is the Texas Court of Criminal Appeals.
The state of Texas once again argued its’ case against Johnson. “The State had said that its interest were more important than Johnson’s symbolic speech rights because it wanted to preserve the flag as a symbol of national unity, and wanted to maintain order. ” (Wikipedia, 2009) Although many people following the case agreed with the state of Texas, the Court of Criminal Appeals did not feel that either reason could be used to justify Johnson’s conviction. The Court over turned the conviction saying, “that the state could not punish Johnson for burning the flag because the First Amendment protects such activity as symbolic speech. (Wikipedia, 2009) The state of Texas then decided to ask the Supreme Court to hear its case and in 1989, the Court made its ruling public. The Constitutional questions raised by the case were whether the First Amendment as freedom of speech could protect Johnson’s actions and if Johnson meant to cause disorder by his actions. The Supreme Court’s controversial decision was that, “Under the circumstances, Johnson’s burning of the flag constituted expressive conduct, permitting him to evoke the First Amendment. The court also added that, “While the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word, it may not proscribe particular conduct because it has expressive elements. ” (Wikipedia, 2009) As to the issue of whether Johnson’s actions were meant to cause disorder, the Court ruled that no mayhem or chaos occurred because of the burning of the flag. The Court also cited a similar case; Brandenburg vs. Ohio which ruled that a state may only punish speech that would incite “imminent lawless action. The Supreme Court’s ruling was extremely unpopular and angered many people. Many America’s felt that the flag being the symbol of our country had its own right has to be protected, but the Supreme Court did not agree. The justification for the Supreme Court ruling could be best summarized by Justice Kennedy, who ruled in favor of protecting Johnson’s rights, “ though symbols often are what we ourselves make of them, the flag is constant in expressing the beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit.
The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt. ” (Wikipedia, 2009) It has been suggested by some that instead of punishing those who feel differently about the flag, that they should be convinced that they are simply wrong. “It is our flag that is involved; one’s response to the flag burner may exploit the uniquely persuasive power of the flag itself.
We can imagine no more appropriate response to burning a flag than to wave one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, and no surer means of preserving the dignity even the flag that burned then 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. ” (Apel) There many developments that occurred due to the Supreme Court’s ruling.
First of all the decision-invalidated laws in force in 48 of 50 states, many of these laws had to be revised and passed by the states to concur with the Court’s ruling. Even now, 20 years after the Court made it judgment this issue is still a hot debate among Americans. Many recent polls suggest that a lot of American’s would support a ban on flag burning. There have been many proposals brought before Congress over the years but none has been able to make through the House and the Senate.
Congress did pass the Flag Protection Act in 1989, making it a federal crime to desecrate the flag. Since then, “Congress has considered the Flag Desecration Amendment several times. The amendment usually passes the House of Representative, but has always been defeated in the Senate. The most recent attempt occurred when S. J. RES. 12 failed by one vote on June 27, 2006. ” (Apel) Although most Americans would never think to burn our nation’s most cherished emblem we have to stop a think about those who do and their reason for doing it.
What statement are they trying to make, why are they choosing this form of freedom of speech, and who it is are trying to reach. Maybe for some of them it is a way to express their outrage and frustration with a government they do not agree with, for them it is a way to be heard without making a sound. Bibliography (2009, October 4). Retrieved October 6, 2009, from Wikipedia: www. wikipedia. org/wiki/Texas_v. _Johnson Apel, W. S. (n. d. ). The Flag-Burning Page. Retrieved October 6, 2009, from Esquilax: www. esquilax. com/flag/texasvjohnson. hmtl
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