Is Flag Burning Protected by the First Amendment?
Can an individual be prosecuted for openly burning the American flag in a political protest? Gregory Johnson did this in a political protest outside Dallas City Hall. He was then tried and convicted of desecrating a venerated object under a Texas law (Penal Code 42.09), which states that "a person commits an offense if he intentionally or knowingly desecrates a state or national flag" (317). The question of whether this Texas law is in violation of the First Amendment, which "holds that Congress shall make no law... abridging the freedom of speech" (316), was brought before the United States Supreme Court in Texas v. Johnson (1989). A divided court ruled 5 to 4 that the
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Brennan implies that this case is relevant to Johnson's because the defendant was also burning a flag in protest and then had his conviction overturned because "people are allowed to express opinions that are defiant or contemptuous" (319). Rehnquist's opinion, however, uses the same precedent to establish differences: "Since the defendant might have been convicted solely on the basis of his words, the conviction could not stand, but it expressly reserved the question whether a defendant could constitutionally be convicted for burning the flag..." (323). Rehnquist argues that although there are clear similarities between the cases, the court's prior decisions had "left open the question that the Court [resolves with the Johnson decision]" (323). When examining Brennan's use of past precedent in isolation, it appears as if the court had already decided this issue: case law was in support of his conclusion. Rehnquist's argument critiques this by showing a significant difference between the two cases. After examining both of their arguments, it becomes apparent that the laws of our nation are not black and white, but rather very flexible, depending upon who interprets them. This can again be seen when both of the justices look to the First Amendment to determine the constitutionality of prohibiting flag burning.
However, the First Amendment, which guarantees an individual the right to