You might not think about it, but the 1st Amendment is much more than the right to practice the religion you choose, it is much more than the right to freedom of the press, and it is much more than the right to freedom of speech. It is all much deeper than just that. Within the freedom of speech, you not only have the right to express yourself verbally, but you also have the right to express your ideas through actions. That is symbolic speech. Like most limits of the 1st Amendment, the limits to symbolic speech are very blurred and not completely understood. This raises many questions, one being is burning the flag of the United States of America protected as symbolic speech under the 1st Amendment?
The simple answer to that question is yes, burning the US flag is protected under the 1st Amendment. While this controversy still exists today, it has been around for a while. This idea first came into question in 1984 in the Texas v. Johnson case. Gregory Johnson wanted to protest President Reagan and his policies at the Republican National Convention in Dallas, Texas. To do so, he burned a flag outside the convention center where it was being held and was arrested when bystanders felt offended by his actions. He was being charged for ¨violating a Texas statute that prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger in others¨. Johnson’s defense: his actions were protected under the 1st Amendment as symbolic speech. After a trial and an appeal, the case moved to the Supreme Court where they ruled 5-4 in favor of Johnson. Their reasoning, ¨The majority of the Court, according to Justice William Brennan, agreed with Johnson and held that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment. The majority noted that freedom of speech protects actions that society may find very offensive, but society’s outrage alone is not justification for suppressing free speech¨. This ruling only applied to Texas law, so the federal government decided to enact a law that prohibited all flag burning, ¨with the exception of burning and burying worn out flags¨. In the same 5-4 ruling, the Supreme Court voted against this law, ending its enactment. Due to that, the guidelines from Texas v. Johnson are the ones that we follow today regarding symbolic speech, although they are occasionally challenged. When challenged, the prosecutor (often the government) must prove to a court that there is sufficient reason that the action in question should not be protected as symbolic speech. This reason cannot just be that the prosecutor disapproves of the action and finds it offensive.
While not all issues with the 1st Amendment are always crystal clear, the issue regarding flag burning seems like it is set in stone, burning the US flag is protected as symbolic speech under the 1st Amendment. While many may not like it, it offers one to voice their displeasure over problems regarding the state of our nation through actions, not just words.
Works Cited
- “Landmark Cases of the U.S. Supreme Court.” What Is Symbolic Speech? When Is It Protected? | Www.streetlaw.org, landmarkcases.org/en/Page/680/What_Is_Symbolic_Speech__When_Is_It_Protected
- “Facts and Case Summary – Texas v. Johnson.” United States Courts, www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-texas-v-johnson
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