Is Flag Burning Protected by the First Amendment?

Is Flag Burning Protected by the First Amendment?

Can an individual be prosecuted for openly burning the American flag in a political protest? Gregory Johnson did this in a political protest outside Dallas City Hall. He was then tried and convicted of desecrating a venerated object under a Texas law (Penal Code 42.09), which states that "a person commits an offense if he intentionally or knowingly desecrates a state or national flag" (317). The question of whether this Texas law is in violation of the First Amendment, which "holds that Congress shall make no law... abridging the freedom of speech" (316), was brought before the United States Supreme Court in Texas v. Johnson (1989). A divided court ruled 5 to 4 that the Texas law was in violation of the First Amendment. Using the same Constitution, precedents, and legal standards, the Supreme Court justices came to two drastically different positions regarding the constitutionality of prohibiting flag burning. To see how such a division is possible, we are going to compare and contrast both the arguments and the methods of argumentation used by both the majority opinion (written by Associate Justice Brennan) and the dissenting opinion (written by Chief Justice Rehnquist), which critiques the majority opinion.

Surprisingly, both Associate Justice Brennan's majority opinion and Chief Justice Rehnquist's response, the dissenting opinion, cited Street v. New York to support their contradictory conclusions. In Street, the Supreme Court overturned the conviction of the defendant, who "burned a flag in the street shouting 'We don't need no damned flag' " (323). Brennan argues that the precedent in this case supports the majority opinion: "[In Street] we c...

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..., but a Supreme Court justice's appointment lasts a lifetime.

Works Cited

Note: all documentation that only includes the page number refers to the Rehnquist and Brennan opinions.

"Chicago v. Mosley." 1991. World Wide Web. 3 March 2001. World Wide Web.

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O' Connor, Sandra D. "Boos v. Barry." 22 March 1988. World Wide Web. 3 March 2001.

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Rehnquist, William H., Brennan, William J. "A Casebook on the Law and Society: What Rights

Do the First and Fourth Amendments Protect?" Current Issues & Enduring Questions: A Guide to Critical Thinking and Argument with Readings. Ed. Sylvan Barnet and Hugo Bedau. 5th ed. Boston: Bedford/St Martin's, 1999. 316-324.