Historical Context of Texas vs. Johnson
In 1989, Judge Antonin Scalia cast a pivotal vote against Gregory Lee Johnson’s conviction. Johnson had been sentenced for burning the American flag outside the Republican National Convention in Texas.
The opinion, penned by Judge William Brennan, a prominent liberal voice, emphasized the Constitution as a “living document.” This decision stands as one of Scalia’s most scrutinized moments, alongside another instance where he opposed recognizing parental rights in child upbringing.
Interestingly, Brennan’s opinions, which Scalia supported, have often been perceived as more definitive than they were in practice.
Background on the Case
Texas argued that prosecuting Johnson was justified because his actions constituted a violation of the First Amendment. They viewed flag burning not just as an act of expression, but as something potentially disruptive. The state claimed that they held broader authority in regulating expressive behaviors compared to spoken or written communication. Laws that inhibit expressive conduct are acceptable if they serve a significant governmental interest.
Texas defended its flag laws on two grounds: to uphold peace and to preserve the flag as a national symbol. However, the court dismissed the latter as an attempt to stifle expression and found the former irrelevant to the specifics of the case.
What this highlights is a caution against using Texas vs. Johnson as a straightforward precedent, especially in light of President Donald Trump’s recent executive order regarding flag burning.
The Order’s Claims
In clarifying the significance of the flag, the order states that many American service members have sacrificed their lives in its name. It labels flag burning as a hostile act, one potentially leading to violence and chaos. The order further argues that burning the flag has been used by foreign groups to incite violence against Americans based on their nationality.
The order accurately notes that the Supreme Court has not recognized flag-burning as protected speech under the Constitution, particularly in contexts that incite imminent lawlessness. It applauds the Attorney General for emphasizing civil and criminal enforcement against flag desecration, framing it as a harmful action that falls outside constitutional protections.
Related Observations: College students frequently express that the American flag represents concepts of “genocide,” “extremism,” and “injustice.”
Preserving Existing Precedent
After more than three decades since the flag-burning incident, officials at varying levels tended to believe that such actions were constitutionally shielded under any circumstance—a viewpoint that many critics of the president’s orders dispute. Trump has taken a firm stance on safeguarding the flag from those who burn it to provoke violence or challenge American patriotism.
Incitement exceptions related to targeting specific individuals, rather than groups, have been outlined. Yet, the Supreme Court acknowledged in the Virginia v. Black cross-burning case that the First Amendment does not necessarily protect actions aimed at groups.
The usage of the American flag has sometimes crossed into offensive territory, employed as a means to instigate and intimidate in various cities, especially in reaction to Trump’s immigration policies. Therefore, the executive order could likely be upheld by the Supreme Court when challenged.
