Texas v. Johnson, 491 U.S. 397; 109 S. Ct. 2533; 1989 U.S. LEXIS 3115 (U.S. 1989)


Justice Kennedy, concurring.

I write not to qualify the words Justice Brennan chooses so well, for he says
with power all that is necessary to explain our ruling. I join his opinion
without reservation, but with a keen sense that this case, like others before us
from time to time, exacts its personal toll. This prompts me to add to our
pages these few remarks.

The case before us illustrates better than most that the judicial power is
often difficult in its exercise. We cannot here ask another Branch to share
responsibility, as when the argument is made that a statute is flawed or
incomplete. For we are presented with a clear and simple statute to be judged
against a pure command of the Constitution. The outcome can be laid at no door but ours.

The hard fact is that sometimes we must make decisions we do not like. We make
them because they are right, right in the sense that the law and
the Constitution, as we see them, compel the result. And so great is our
commitment to the process that, except in the rare case, we do not pause to
express distaste for the result, perhaps for fear of undermining a
valued principle that dictates the decision. This is one of those rare cases.

Our colleagues in dissent advance powerful arguments why respondent may be
convicted for his expression, reminding us that among those who will be dismayed
by our holding will be some who have had the singular honor of carrying the
flag in battle. And I agree that the flag holds a lonely place of honor in
an age when absolutes are distrusted and simple truths are burdened by unneeded
apologetics.

With all respect to those views, I do not believe the Constitution gives us
the right to rule as the dissenting Members of the Court urge,
however painful this judgment is to announce. Though symbols often are what we
ourselves make of them, the flag is constant in expressing 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.

For all the record shows, this respondent was not a philosopher and perhaps
did not even possess the ability to comprehend how repellent his
statements must be to the Republic itself. But whether or not he could
appreciate the enormity of the offense he gave, the fact remains that his acts
were speech, in both the technical and the fundamental meaning of the
Constitution. So I agree with the Court that he must go free.