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



Justice Stevens, dissenting.

As the Court analyzes this case, it presents the question whether the State
of Texas, or indeed the Federal Government, has the power to prohibit the public
desecration of the American flag. The question is unique. In my judgment
rules that apply to a host of other symbols, such as state flags, armbands, or
various privately promoted emblems of political or commercial identity, are not
necessarily controlling. Even if flag burning could be considered just
another species of symbolic speech under the logical application of the rules
that the Court has developed in its interpretation of the First Amendment in
other contexts, this case has an intangible dimension that makes those rules
inapplicable.

A country's flag is a symbol of more than "nationhood and national unity."
Ante, at 407, 410, 413, and n. 9, 417, 420. It also signifies the ideas that
characterize the society that has chosen that emblem as well as the special
history that has animated the growth and power of those ideas. The
fleurs-de-lis and the tricolor both symbolized "nationhood and national unity,"
but they had vastly different meanings. The message conveyed by some
flags -- the swastika, for example -- may survive long after it has outlived
its usefulness as a symbol of regimented unity in a particular nation.

So it is with the American flag. It is more than a proud symbol
of the courage, the determination, and the gifts of nature that
transformed 13 fledgling Colonies into a world power. It is a symbol of
freedom, of equal opportunity, of religious tolerance, and of good will for
other peoples who share our aspirations. The symbol carries its message to
dissidents both at home and abroad who may have no interest at all in our
national unity or survival.

The value of the flag as a symbol cannot be measured. Even so, I have no
doubt that the interest in preserving that value for the future is both
significant and legitimate. Conceivably that value will be enhanced by the
Court's conclusion that our national commitment to free expression is so strong
that even the United States as ultimate guarantor of that freedom is without
power to prohibit the desecration of its unique symbol. But I am unpersuaded.
The creation of a federal right to post bulletin boards and graffiti on the
Washington Monument might enlarge the market for free expression, but
at a cost I would not pay. Similarly, in my considered judgment, sanctioning
the public desecration of the flag will tarnish its value -- both for those
who cherish the ideas for which it waves and for those who desire to don the
robes of martyrdom by burning it. That tarnish is not justified by the trivial
burden on free expression occasioned by requiring that an available, alternative
mode of expression -- including uttering words critical of the flag, see
Street v. New York, 394 U.S. 576 (1969) -- be employed.

It is appropriate to emphasize certain propositions that are not implicated
by this case. The statutory prohibition of flag desecration does not
"prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their faith
therein." West Virginia Board of Education v. Barnette, 319 U.S. 624,
642 (1943). The statute does not compel any conduct or any profession of respect for any idea or any symbol.

Nor does the statute violate "the government's paramount obligation
of neutrality in its regulation of protected communication."
Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976)
(plurality opinion). The content of respondent's message has no relevance
whatsoever to the case. The concept of "desecration" does not turn on the
substance of the message the actor intends to convey, but rather on whether
those who view the act will take serious offense. Accordingly, one intending to
convey a message of respect for the flag by burning it in a public square
might nonetheless be guilty of desecration if he knows that others -- perhaps
simply because they misperceive the intended message -- will be seriously
offended. Indeed, even if the actor knows that all possible witnesses will
understand that he intends to send a message of respect, he might still be
guilty of desecration if he also knows that this understanding does not lessen
the offense taken by some of those witnesses. Thus, this is not a case in which
the fact that "it is the speaker's opinion that gives offense" provides a
special "reason for according it constitutional protection," FCC v.
Pacifica Foundation, 438 U.S. 726, 745 (1978) (plurality opinion).
The case has nothing to do with "disagreeable ideas," see ante, at 409. It
involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset.

The Court is therefore quite wrong in blandly asserting that respondent "was
prosecuted for his expression of dissatisfaction with the policies of this
country, expression situated at the core of our First Amendment values." Ante,
at 411. Respondent was prosecuted because of the method he chose to express his
dissatisfaction with those policies. Had he chosen to spray-paint -- or perhaps
convey with a motion picture projector -- his message of dissatisfaction on the
facade of the Lincoln Memorial, there would be no question about
the power of the Government to prohibit his means of expression. The
prohibition would be supported by the legitimate interest in preserving the
quality of an important national asset. Though the asset at stake in
this case is intangible, given its unique value, the same interest supports a
prohibition on the desecration of the American flag. *

The ideas of liberty and equality have been an irresistible force in
motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln,
schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts
who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If
those ideas are worth fighting for -- and our history demonstrates that they are
-- it cannot be true that the flag that uniquely symbolizes their power is not
itself worthy of protection from unnecessary desecration.

I respectfully dissent.


Footnotes

* The Court suggests that a prohibition against flag desecration is not
content neutral because this form of symbolic speech is only used by persons who
are critical of the flag or the ideas it represents. In making this
suggestion the Court does not pause to consider the far-reaching consequences of
its introduction of disparate-impact analysis into our First Amendment
jurisprudence. It seems obvious that a prohibition against the desecration of a
gravesite is content neutral even if it denies some protesters the right to make
a symbolic statement by extinguishing the flame in Arlington Cemetery where John
F. Kennedy is buried while permitting others to salute the flame by bowing their
heads. Few would doubt that a protester who extinguishes the flame has
desecrated the gravesite, regardless of whether he prefaces that act with a
speech explaining that his purpose is to express deep admiration or unmitigated
scorn for the late President. Likewise, few would claim that the protester who
bows his head has desecrated the gravesite, even if he makes clear that his
purpose is to show disrespect. In such a case, as in a flag burning case, the
prohibition against desecration has absolutely nothing to do with the content of
the message that the symbolic speech is intended to convey.