Flag Burning
In 1984 a member of the Revolutionary
Communist Youth Brigade, Gregory Johnson, torched an American
flag outside the Republican Convention in Dallas. His act
was part of a demonstration to protest foreign policies of
President Reagan's administration. Little did Johnson know,
however, that he also would be igniting a long and emotional
debate in Congress and around the nation — a debate pitting
the sanctity of a national symbol against an individual's
right to free expression.
Johnson was prosecuted under Texas
law for "desecration of a venerated object" and was sentenced
to a year in prison and fined $2,000. He appealed, and the
case eventually landed in the U.S. Supreme Court.
In a 5-4 decision, Supreme Court held
in 1989 that Johnson's flag-burning demonstration was a form
of expression protected by the First Amendment. The majority
opinion in Texas v. Johnson was written by Justice William
Brennan, one of the Supreme Court's most ardent First Amendment
advocates from 1956 until his retirement in 1990. He wrote:
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The First Amendment
literally forbids the abridgement 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 Amendment]." ... The
expressive, overtly political nature of
this conduct was both intentional and overwhelmingly
apparent.
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This is the concept of "symbolic speech" or "expressive
conduct." What normally would be pure conduct, such as
wearing an armband or defacing a flag, becomes protected expression
when the conduct is clearly infused with a political message.
The Court has deemed this hybrid form of speech to be within
the liberty guaranteed by the First Amendment. But the Johnson
ruling touched off a particularly rancorous debate.
Following the Court's decision, President
George H. Bush called for a constitutional amendment against
flag burning. Congress instead decided to pass a statute,
the Flag Protection Act. Along came another court test, this
time involving four protestors who set a flag afire in front
of the Seattle Post Office. The case found its way to the
Supreme Court in 1990, and the federal statute, like the Texas
law before it, was ruled unconstitutional by a 5-4 Court.
Since the second ruling, Congress
has tried several times to pass a constitutional amendment
to prohibit flag desecration. But while the House of Representatives
has routinely passed the proposed amendment, the U.S. Senate
has not mustered the necessary two-thirds approval.
Most recently, the House approved
a proposed amendment that read, "The Congress shall have
power to prohibit the physical desecration of the flag of
the United States." But the Senate in June 2006 came
up one vote short of the necessary 67 votes needed for approval.
Republican Sen. Bob Bennett of Utah
provided a key vote against the measure. He was quoted as
saying: " I am upset about people who burn the flag,
but I took an oath to uphold the Constitution, not the flag."
