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United States Supreme Court
Protests against government policies are older than the nation itself, and are an integral part of
United States history. The colonists’ protests against British policies led directly to our War for Independence
and influenced the writing of both the Declaration of Independence and the Constitution. New Englanders
protested that the War of 1812 was illegal, and some advocated secession from the national government
in response. Thoreau protested against the Mexican War by refusing to pay his taxes. Popular protest against
both World War I and the Vietnam conflict are well documented. Some would say the nation was born out
of protesting government policies. If voicing opposition to the government is such an integral part of
our national heritage, can protests go too far? Some will always object to protests, either because they
support the government’s actions or because they dislike the form of protest. But when does protest become
too extreme?
Gregory Lee Johnson was part of a political demonstration during the 1984 Republican National Convention
in Dallas. Johnson and others were protesting the foreign policies of the Reagan administration and also
the work of several Dallas-based defense industry corporations. One of Johnson’s fellow protestors provided
an American flag, which Johnson soaked in kerosene and burned in front of the Dallas City Hall. While
the flag was burning protestors chanted "America the red, white, and blue, we spit on you,"
and "Ronald Reagan, killer of the hour, perfect example of U.S. power." No one present was physically
injured or threatened with injury. Johnson was convicted of violating a Texas law by desecrating a venerated
object, was sentenced to one year in jail and fined $2000. The 1st Texas Court of Appeals upheld the conviction,
accepting Texas’ argument that it had a duty to preserve the sanctity of the flag as a venerated object,
and that the state had an overriding interest in keeping the peace. (Texas argued that if flags were burned,
riots would start from good citizens attacking the flag-burners.) But the highest Texas court overturned
the conviction, ruling that the Texas law violated the First and Fourteenth Amendments, and Texas appealed
to the Supreme Court.
Texas asserted that its law was justified on the grounds of preventing lawless action, and that its duty
of preserving the flag as a symbol of national unity was more important than Johnson’s right to communicate
his beliefs by burning the flag. Is flag-burning a form of political speech or expression? Does the state
have a legitimate interest in keeping the peace? The court had to decide these issues. Because Johnson
burned the flag at the Republican Convention as part of the demonstration, the court ruled, he was obviously
making a political statement that is protected by the First Amendment. He obviously expected that his
act would evoke a response from onlookers. Johnson was convicted in Texas because by burning the flag,
he expressed contempt for government policies. Justice Brennan once again raised the issues of Barnette;
namely who decides what national symbols should be protected, and does the Constitution allow states
to force national unity on all citizens by making them accept the political beliefs of the majority? The
decision evoked strong divisions and reaction. The Supreme Court broke its usual conservative v. liberal
lines and several members struggled over the freedom of speech issue, such as Justice Kennedy. Nationally,
the decision led to increased flag sales, the new Flag Protection Act, and a follow-up case, United
States v. Eichman. Are First Amendment rights absolute? Should they be?
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