WRFH/Radio Free Hillsdale 101.7 FM - In Media Res: Texas v. Johnson

Episode Date: November 5, 2024

Join Hershey and Stephanie as they discuss the bounds of symbolic speech with a landmark Supreme Court case involving the burning of the American flag.

Hello, beautiful people, and welcome to our show on Radio Free Hillsdale 101.7 FM. My name is Hershey. And my name is Stephanie. And we're your host for Inmedia Res, a show where we examine a landmark court case, starting from the middle of the action. In this episode, we will be discussing a Supreme Court case that remains controversial to this day. In 1989, the Supreme Court ruled in the case of Texas v. Johnson that the burning of the American flag is a protected form of free speech under the First Amendment of the Constitution. Now, let's get into why this case has stirred up so much disagreement. Yeah, let's dive right in.

In 1984, the Republican National Convention was held in Dallas, Texas. This is where Ronald Reagan was nominated for his second term as president. Gregory Lee Johnson, the defendant in this case, was burning the American flag outside of Dallas City Hall. Johnson did this as a part of the protest against the policy of the Reagan administration. He was arrested shortly after for violating a state law in Texas that banned many kinds of flag desecration. So the question at hand is, is burning the American flag a form of symbolic speech protected under the First Amendment? Does the Constitution allow Americans the right to perform this kind of flag desecration?

And it does help to clarify that though the First Amendment only literally forbids the government from abridging our right to spoken or written speech, the amendment has long been considered to protect other forms of speech that may not seem as obvious. A great example would be the case of Tinker v. Des Moines in which the Supreme Court held that wearing armbands is a protected form of symbolic speech. So in this case, the Supreme Court ruled with a 5-4 majority that the First Amendment does protect these actions, regardless of their offensive nature. Justice Brennan wrote the majority opinion in this case, famously writing, if there's a bedrock principle underlying the First Amendment, it is that the government may not

prohibit the expression of an idea simply because society finds the idea itself, offensive or disagreeable. To support the ruling, Justice Brennan cited previous cases involving controversial conduct toward the flag. He wrote that attaching a peace sign to the flag, refusing to salute the flag, and displaying a red flag even, we have held, all may find shelter under the First Amendment. Justice Kennedy wrote a concurrence to the majority opinion. And for our listeners, a concurrence is just a separate opinion written by another justice that supports or adds to the majority opinion. Yes, and in his concurring opinion, Kennedy states that despite the painful nature of this ruling, it is at the end of the day necessary. The First Amendment does not give the government the right to suppress any form of speech, and he clarifies that this ruling does not negate the symbolic power of the American flag.

He says, quote, Those symbols often are what we ourselves make of them. The flag is constant in expressing beliefs American share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the cause to which those beliefs commit us. Some of the dissenting judges, however, draw a clear distinction between symbolic speech, any conduct disrespectful toward the flag. For instance, Justice John Stevens dissented in this case,

and his opinion, he wrote that the flag was a special symbol of values and ideas that underlie the founding of America. He says, quote, if those ideas are worth fighting for, it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration. Justice Rehnquist, another dissenter, further claimed that Johnson was free to make disparaging remarks about the flag, and even births. the flag in private. But the act of publicly desecrating the flag was not an expression of speech. It was a breach of peace. This, he argued, was what allowed the government to prohibit the burning of the American flag. But just as Brennan responded to both of these claims by saying,

quote, we are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened by our holding today. I'm afraid that's all we have time for on this episode of In Media Red. We're your hosts, Hershey and Stephanie, and we thank you for joining us. We'll catch you next time on Radio Free Hillsdale, 101.7 FM.