In this long season of political discontent, one cannot help wondering how we have come to our current straits. What are the landmarks that defined our course?
One came with a 1989 Supreme Court decision, Texas v. Johnson, a controversial free speech case. The case’s resulting opinions touch on various issues roiling our politics today, from the balance between judicial and legislative powers to the place of extreme opinions in the public square.
The facts of the case are straightforward. In 1984, Gregory Lee Johnson burned an American flag as part of a demonstration in Dallas during that year’s Republican national convention. For this, Johnson was arrested under a Texas law that prohibited the destruction of a venerated object. Johnson was tried and convicted and then appealed the conviction, which, in time, went to the Supreme Court.
The hearings focused on whether flag burning was protected speech under the First Amendment. The Supreme Court sided with Johnson and against the state of Texas – that is, against the constitutionality of the Texas law that prohibited flag burning. However, the decision was narrowly won, 5-4, and controversial.
Written by Justice William Brennan, the majority opinion is a full-throated defense of free speech. In it, the Court affirmed several key arguments: that the burning of the flag should be considered speech because it clearly communicated a political belief. Additionally, flag burning did not violate any of the accepted reasons for banning speech. For example, it did not amount to “fighting words” that could be expected to incite violence. Brennan’s opinion addressed the obvious distress that the act caused to patriotic Americans but did not find that offence enough of a reason to ban flag burning. “If there is a bedrock principle underlying the First Amendment,” Brennan wrote, “it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.”
This argument won the day, but two dissents were filed, including one from Chief Justice William Rehnquist. It opens with a long litany of ways, both in law and culture, that the flag has been treated as a unique symbol of the nation and thus its desecration was a matter of understandable concern.
Rehnquist’s dissent mirrored the majority opinion’s nod toward the symbolic importance of the flag. But Rehnquist had other fish to fry too. Foremost was this: the legislation that outlawed flag burning in Texas was legitimately passed and reflected the will of the people living in that state – a matter of serious constitutional weight in a democracy. In this regard, Rehnquist cited a longstanding piece of wisdom from a 19th century Supreme Court decision. While the judiciary might need to override legislation at times, doing so is always “a question of much delicacy,” which ought rarely, if ever, to be done when the case is “doubtful.”
To Rehnquist, Texas v. Johnson was very much a doubtful case. Even if flag burning qualifies as speech, it is speech of an especially inarticulate kind, more akin to a “grunt” or a “howl,” as his dissent puts it. Moreover, banning this one form of speech leaves in place all the other standard avenues of communication, from letters to the editor to soapbox oratory – even actual grunting or howling, had Gregory Lee Johnson been so inclined. That being the case, the country gains little by overriding a ban. And it stands to lose a great deal by frustrating the majority in one essential job of a democratic government: “to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people,” as Rehnquist put it.
Thirty years later, we might ask what Texas v. Johnson means for us today. Apart from its implications for freedom of speech, we might consider one aspect of the ruling. In striking down Texas’s ban on flag burning, the Court might have missed an opportunity. Had it sustained the ban, it would have signaled its concern about the seriousness of political discourse itself and the danger of its degradation. Discourse, after all, is at the heart of the extremely difficult job of democratic governance in a highly diverse society.
In its high-minded acceptance of flag burning, never more than a gross insult, the Court chose not to protect, in this one symbolic instance, the dignity of political speech. Or, more precisely, they chose not to let the people and their representatives to do so.
Ed Hagenstein is the author of The Language of Liberty: A Citizen’s Vocabulary (Rootstock, 2020).