Political protesters have often used the U.S. flag as a vehicle to express opposition to government policies. During the Vietnam War era, the mutilation or burning of the flag became commonplace. Such actions angered many people, and legislation was passed at the state level to prohibit this conduct. In Street v. New York, 394 U.S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969), the Supreme Court had the opportunity to address the question of whether flag burning is entitled to constitutional protection as symbolic speech. However, the Court focused on the element of verbal expression also presented in this case and effectively avoided the symbolic speech issue. In a 1974 case, the Court did strike down a Washington state law that prohibited the display of the U.S. flag with "extraneous material" attached to it (Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842).
The Street decision left open the question of whether flag burning per se was a form of symbolic speech protected by the First Amendment. In 1989, in the highly publicized case of texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342, the Court surprised many observers by ruling that flag burning was protected. After publicly burning the U.S. flag outside the 1984 Republican National Convention in Dallas, Texas, Gregory Lee Johnson was charged with violating a Texas law prohibiting flag desecration. Johnson was convicted at trial, but his conviction was reversed by the Texas Court of Criminal Appeals, which held that the law violated the First Amendment. On a 5–4 vote, the U.S. Supreme Court agreed.
Writing for the majority, Justice william j. brennan jr. noted that "[t]he expressive, overtly political nature of [Johnson's] conduct was both intentional and overwhelmingly apparent." It was clear that "Johnson was convicted for engaging in expressive conduct." Rejecting the assertion by Texas that the law prevented breaches of the peace, the Court concluded that "Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression."
Chief Justice william h. rehnquist, in a dissenting opinion, dismissed the idea that flag burning was a form of symbolic speech. On the contrary, he stated, "flag burning is the equivalent of an inarticulate grunt or roar that … is most likely to be indulged in not to express any particular idea, but to antagonize others…." Rehnquist argued that the flag "as the symbol of our Nation, [has] a uniqueness that justifies a governmental prohibition against flag burning…."
Flag Burning: Desecration or Free Expression?
The Supreme Court's decision in texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), striking down a Texas law that made burning the U.S. flag a crime, was endorsed by the American Civil Liberties Union (ACLU) and other groups that seek to preserve freedom of expression under the First Amendment. Other groups and individuals, however, were dismayed that the Court would strike down a law that protected the symbol of the United States. Congress responded by passing the federal Flag Protection Act of 1989, 103 Stat. 777, which made flag burning a federal crime. When the Supreme Court struck down the federal law in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990)