The U.S. Supreme Court rules that burning the American flag is protected under the First Amendment - June 21st, 1989

On this day in 1989, in a narrow decision, the United States Supreme Court upheld the rights of protesters to burn the American flag. 

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Episode Transcript

Speaker 1 (00:00):
This Day in History Class is a production of I
Heart Radio. Hello and welcome to This Day in History Class,
a show that shines a light on the ups and
downs of everyday history. I'm Gabe Lousier, and today we're
talking about a landmark case that confirmed the right of

(00:20):
US citizens to deface one of the most revered symbols
of their own country. The day was June one, nine.
In a narrow decision, the United States Supreme Court upheld

(00:42):
the rights of protesters to burn the American flag. The
court voted five to four in favor of Gregory Lee Johnson,
a protester who had set fire to the flag at
the four Republican National Convention in Dallas, Texas. The majority
of the court held that Johnson's action had constituted a

(01:03):
form of symbolic speech and was therefore protected by the
First Amendment. While flag burning had never been widely embraced
by the American public, the fight to ban it only
gained traction during the Vietnam War. In nineteen sixty eight,
Congress cracked down on anti war protesters by passing a

(01:23):
federal ban on all forms of flag desecration, including burning it.
Most states were of the same mind on the issue.
In fact, forty eight of them already had their own
laws against flag burning on the books. Naturally, Texas was
among those states. As Gregory Lee Johnson found out in

(01:44):
four he had traveled to Dallas with his friends and
fellow members of the Revolutionary Communist Party, a group later
described by their own lawyer as quote punk anarchists who
despised the government and big business. Each of the convention,
Johnson and his friends gathered outside the stage, die ins

(02:04):
and other dramatic forms of protest. At one point, Johnson
poured kerosene on an American flag that had been stolen
from a nearby display and set it on fire in
front of Dallas City Hall. As it burned, he and
other protesters chanted quote red, white and blue, we spit
on you. You stand for plunder, you will go under.

(02:28):
After the demonstration had ended, one witness reportedly collected the
flags remains and buried them in his backyard. In a
later interview with c Span, Johnson explained that his action
was meant to protest the policies of the Reagan administration
and the gung ho militarism of the era. Quote we
wanted to do as much as possible to puncture the

(02:51):
whole chauvinistic ramboistic atmosphere around that convention. Johnson and about
a hundred others were arrested that day, but he was
the only one charged and ultimately convicted of breaking the
Texas law. He was fined two thousand dollars and sentenced
to one year in prison. A series of appeals first

(03:12):
affirmed and then reversed that conviction, ultimately sending the case
all the way up to the Supreme Court. In the
case of Texas v. Johnson, defense attorneys argued that flag
burning was exactly the kind of symbolic speech that the
First Amendment had been designed to protect. The majority of
the court agreed, noting that the outrage and offense that

(03:34):
many citizens felt at the sight of a burning flag
was not just cause for suppressing free speech. Justices William Brennan,
Anthony Kennedy, Thurgood Marshal, Harry Blackman, and Antonin Scalia formed
the majority opinion, while Chief Justice William Renquest dissented, along
with Justices John Paul Stevens, Sandra Day O'Connor, and Byron White.

(04:00):
Writing for the dissent, Justice Stevens argued that the flag
holds a special status as a symbol of national unity,
and that as such, its protection should be of greater
concern than what he viewed as a crude form of
symbolic speech. Steven's worried that allowing such shows of disrespect
would gradually wear away the meaning and effectiveness of the

(04:22):
flag as a symbol. Strikingly conservative Justice Antonin Scalia disagreed
and ultimately sided with the majority during oral arguments, Scalia
explained that quote, Johnson's actions would have been useless and
less the flag was a very good symbol for what
he intended to show. Contempt for his action does not

(04:44):
make it any less a symbol. In the majority decision,
Justice William Brennan echoed this idea and suggested that allowing
the flag to be burned in protest is actually an
endorsement of the freedom it's meant to represent. As he
put it, quote, the flag's deservedly cherished place in our
community will be strengthened, not weakened, by our holding today.

(05:08):
Our decision is a reaffirmation of the principles of freedom
and inclusiveness that the flag best reflects, and of the
conviction that our toleration of criticism such as Johnson's is
a sign and source of our strength. Indeed, one of
the proudest images of our flag, the one immortalized in
our own national anthem, is of the bombardment it survived

(05:30):
at Fort McHenry. It is the nation's resilience, not its rigidity,
the Texas SE's reflected in the flag, and it is
that resilience that we reassert today. The Court's ruling swept
away the nineteen sixty eight Federal band and the flag
burning laws of forty eight states, but that was hardly

(05:50):
the end of the debate. Just a few months later,
Congress responded by passing the Flag Protection Act of nineteen
eighty nine, a new national ban on flag burning. However,
the following year, the Supreme Court struck down that law
as unconstitutional as well. Once again, the decision was five
to four. Justice William Brennan cited the Texas v. Johnson

(06:13):
case in his opinion and reiterated the idea that personal
offense does not outweigh the right to free speech. He
summed up by saying, quote, if there is 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. Since that

(06:37):
second ruling in there have been multiple attempts to amend
the Constitution so that laws against flag desecration can finally
be made legal. In fact, it was such a common
occurrence in the nineteen nineties that The Simpsons even poked
fun at the trend in an episode from The Gag
was a parody of the Schoolhouse Rock educational shorts the

(07:00):
nineteen seventies and centered on an anthropomorphic amendment to be
who hoped to outlaw flag burning once and for all.
There's a lot of flag burners who have got too
much freedom. I wanna make it on their bodies. Please,

(07:20):
are all pared freid that there are liberal freeds go
to fall? Why can't we just make a law against
flag burning? Because that law would be unconstitutional. But if
we change the Constitution, then we could make all sorts
of crazy laws. Now you're catching on. As of two

(07:42):
all of those proposed amendments have failed, But there's always
the chance the Supreme Court could reassess its reading of
Texas versus Johnson and declare that flag burning isn't covered
by the First Amendment. After all, it certainly wouldn't be
the first time in earlier decision was overrule old for now, though,
Americans have a freedom that's denied the citizens and many

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other countries around the world, the right to burn their
own flag in protests. I'm gay, Bluesier and hopefully you
now know a little more about history today than you
did yesterday. If you'd like to keep up with the show,
you can follow us on Twitter, Facebook, and Instagram at
t d I HC Show, and if you have any

(08:28):
comments or suggestions, feel free to send them my way
at this Day at iHeart media dot com. Thanks to
Chandler Mays for producing the show, and thank you for listening.
I'll see you back here again tomorrow for another Day
in History class