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Thoughts on the First Amendment following President-Elect’s Controversial Tweets

President-elect Trump has been busy on his Twitter feed and took the time recently to suggest that those who burn the American flag should lose their citizenship.


We hope and trust that Mr. Trump will learn a bit more about the history of the First Amendment. Co-founder Susan Glisson co-wrote, with Charles Haynes and Sam Chaltain, First Freedoms: A Documentary History of First Amendment Rights in America.  It includes an essay (below) by Glisson on the history of protecting flag burning as freedom of expression.

The book, geared toward middle and high school-age students, is available here.

“On August 22, 1984, Gregory Lee Johnson protested the renomination of Ronald Reagan for President during the Republican National Convention in Dallas, Texas. Johnson, age twenty-seven, was a member of the Revolutionary Communist Youth Brigade, which had taken militant stances against the Reagan administration’s foreign policy. Along with other protest groups, Johnson’s organization constructed a march route that took them past many of Dallas’s downtown businesses, culminating at City Hall. Along the route, the protesters chanted obscenities and shouted slogans such as “eat the rich, feed the poor.” Some entered area businesses along the way, causing minor petty vandalism but injuring no one.

Finally, at the steps of City Hall, some marchers set fire to an American flag, singing songs printed on sheets with lyrics such as “Red, white and blue/ we spit on you./ You stand for plunder, you will go under.” Afterward, many of the protesters cooled off in the city fountain.

But as the march concluded, police moved in to arrest the protesters on charges of “disorderly conduct.” Initially, police included the twenty-seven-year-old Johnson–whose anti-American views first took shape when as a child he sold newspapers on an army base in West Germany and spoke with soldiers who had come to see the conflict in Vietnam as a war of aggression–in the arrests. The police soon dropped the disorderly conduct charges, however, and charged Johnson instead with “desecration of venerated object,” using a portion of the 1973 Texas state penal code that forbade an individual to “deface, damage, or otherwise physically mistreat [a state or national flag] in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.”

Three other protesters were charged with flag desecration; only Johnson appeared in court to fight the charges. Eventually, the Indiana native pleaded his case all the way to the U.S. Supreme Court. In response, the Court handed down one of the most significant free-speech cases of the twentieth century.

Surprisingly, given its modern iconic status, the early life of the American flag was unremarkable. Congress passed a resolution declaring the composition of the United States flag in 1777, after an American Indian requested a banner to protect tribal emissaries traveling to meet with the legislature. The creation of an official national flag went unreported in any press, however, for ten weeks. In addition, the first flags varied widely in adhering to the approved design, and they were rarely used in public display. In fact, it was not until the Civil War that the flag began to be flown widely, and even then it was generally flown to designate federal buildings and Union ships at sea.

Today, of course, the flag is a potent crucible for discussions on the First Amendment and on what limits the nation should place on free speech. These concerns culminated in the Johnson case. The central issue was whether burning a banner held so dear by so many was an act of “fighting words” meant to provoke breaches of the peace. Consequently, in its case against Johnson, the state of Texas needed to prove that its desecration statute prevented disorderly conduct, and that the young protester’s act of flag burning was not a constitutionally protected form of expression.

In the end, the U.S. Supreme Court ruled it was unable to show either. There was already another Texas statute outlawing breaches of the peace, the Court observed, so the 1973 desecration statute was redundant. More significantly, the Court ruled that symbolic speech is protected by the First Amendment. Justice William Brennan, writing for the narrow five-to-four majority, asserted that “the right to differ is the centerpiece of our First Amendment freedoms.” He pointed out other decisions that protected different forms of symbolic expression, such as picketing or wearing armbands. And as Johnson’s act did not incite a riot, Brennan explained that the “fighting words” doctrine–a standard first articulated by the Court in 1941–had no relevancy to the case. Thus, it became a matter of whether or not offensive speech was protected by the First Amendment. Justice Brennan wrote decisively in this crucial matter. “If there is a bedrock principle of the First Amendment,” he wrote, “it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Brennan further asserted that he believed the flag’s place as a symbol of democracy was strengthened, not undermined, by the decision to protect free speech.

Chief Justice William Rehnquist disagreed. Writing on behalf of the four dissenting justices, Rehnquist suggested that the American flag deserved special protection and warranted certain restrictions on speech. The chief justice wrote,

The American flag, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. “The flag is not simply another ’idea’ or ’point of view’ competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the [laws] which make criminal the public burning of the flag.”

Rehnquist’s passion swayed many in the public, including a number of politicians, who moved quickly to pass the Flag Protection Act of 1989. Opponents of the act moved quickly, as well, burning an American flag on the Capitol steps.

Before long, federal officials asked the Court to reevaluate its opinion in the Johnson case. In the same five-to-four split, however, the Court held its ground in the 1990 case of United States v. Eichman. Again writing for the majority, Justice Brennan wrote:

[I]t is clear that the Government’s asserted interest in protecting the “physical integrity” of a privately owned flag in order to preserve the flag’s status as a symbol of the Nation and certain national ideals is related to the suppression, and concerned with the content, of free expression. The mere destruction or disfigurement of a symbol’s physical manifestation does not diminish or otherwise affect the symbol itself.

Justice John Paul Stevens saw the issue another way.  He wrote in his dissent,

“. . . the Federal Government has a legitimate interest in protecting the symbolic value of the American flag. Obviously that value cannot be measured, or even described, with any precision.  It has at least these two components: in times of national crisis, it inspires and motivates the average citizen to make personal sacrifices in order to achieve societal goals of overriding importance; at all times, it serves as a reminder of the paramount importance of pursuing the ideals that characterize our society.”

Since the 1990 flag cases, the American public has continued to debate the decisions, and Congress has continued to consider passing an amendment protecting the flag. If adopted, it would become the first amendment to the First Amendment in history.”


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