Flag Burning Tests the Law

• Author: Allen Pusey
• Pages: 72-72

PHOTOGRAPHS BY GORDON GALBRAITH/SHUTTERSTOCK.COM; JOEL SEIDENSTEIN/WIKIMEDIA COMMONS/CC BY-SA 3.0

Flag Burning Tests the Law

It was a searing August afternoon that found communists and anarchists afoot in downtown Da llas.

While attendees of the 1984 Republican National Convention took refuge from the heat on Aug. 22,

1984, protesters had taken to the steamy, nearly deserted streets. Television cameras, hungry for dis-

sonant voices, focused on a keenly theatrical group that called itself the “Republican War Chest Tour.”

Although the Vietnam War was wel l in rear

view, the invasion of Grenada and simmer ing

confl icts in Latin America kept t he nation’s for-

eign involvements at issue, and the protester s

were doing their level best to focus that n arra-

tive on global divisions bet ween rich and poor.

The group scrawled anarchis t glyphs on

storefront windows, bel lowed anti-imperialist

slogans while marchi ng through Neiman

Marcus, and tumbled to t he ground on cue

to dramatize t he deaths of innocents at the

hands of the machiner y of war.

Outside the Mercantile Bank Bui lding, several

protesters pulled down one of 16 Amer ican fl ags regularly

on display. As police watched, they handed it o to one

of their number, Gregory Lee Johnson, who stu ed it

under his shirt.

As the march rea ched city hall, Johnson unfurled the

fl ag and, holding it in one hand, fl icked open a lighter

with the other. When the fl ag fa iled to catch fi re, lighter

fl uid was dispensed to hast en the ignition. As the fl ag

dropped to the sidewalk in a shes, the protesters chanted

and the police moved in.

As many as 100 protester s were taken into custody for

disturbing the peac e, but only one was charged. Johnson,

a self-described commun ist revolutionary from Atlanta,

was cited under Ar ticle 42.09(a)(3) of the Texas Penal

Code, which prohibited “desecration of a venerated

object,” defi ned specifi cally as a public monument, a

place of worship or burial, or any st ate or national fl ag.

At trial, a Dal las jury found Johnson guilty of a mis-

demeanor, and he was sentenced to a year in jai l and a

$2,000 fi ne. The conviction, however, was va cated by

the Texas Court of Crimi nal Appeals on grounds that

the vagueness of the Texas law had not protect ed

Johnson’s constitutional right of free speech.

Since World War II, the Supreme Court had

grappled repeatedly w ith tensions between free

speech and patriotism, of ten involving ven-

eration of the national fl ag. By t he time Texa s

v. Johnson reached oral ar guments in March

1989, Texas authorities had conceded that

Johnson’s fl ag bu rning was an act of protected

speech.

But arguing for the state, D allas County

Assistant Di strict Attorney Kathi A lyce Drew

maintained that Texas had a v ital interest in

protecting the fl ag against erosion as a national

symbol and protecti ng the public against any potential

breach of the peace by those w ho might be o ended.

Justice Antonin Sca lia found the Texas position hard

to reconcile. Not only was there no v iolence when the fl ag

was burned, he noted, but the fl ag’s symbolism seemed

to him enhanced, not erode d, by its burning. Johnson’s

“actions would have been useless unles s the fl ag wa s a

very good symbol for what he intended t o show contempt

for. His action does not make it any less a sy mbol.”

In the resulting 5- 4 decision, Scalia joined Justice

William Brenna n’s majorit y opinion. In addition to

Johnson’s protest being protected speech, Brenna n wrote,

in another context burn ing the fl ag would be p erfectly

appropriate .

If Johnson “had burned the fl ag as a means of disposing

of it because it was dir ty or torn, he would not have

been convicted of fl ag desecration under this Texas law,”

Brennan wrote.

One onlooker had gathered the ashes, t aken them

home and buried them in his back yard—a response he

saw as far more e ect ive than a criminal prosecution.

“We do not consecrate the fl ag by punish ing its

desecration, for in doing so we dilute the fre edom that

this cherished emblem represents,” Brennan w rote.

Aug. 22, 1984

72 || ABA JOURNAL AUGUST 2018

Precedents || By Allen Pusey

Gregory Lee Johnson