Legal Research Final Flag Burning

June 8, 2007

Legal Research

Flag Burning

Joey Three Guns Johnson

"The flag uniquely symbolizes ideas of liberty equality, and tolerance." These words were spoken in a dissent of Supreme Court Justice John Paul Stevens after the conviction of a Texas man was overturned. Texas v. Johnson 205 U.S. 34 is probably the most famous case involving flag burning because the limitations of the First amendment were extended henceforth.

In Texas v. Johnson, Gregory Lee "Joey Three Guns" Johnson was convicted of desecrating a venerated object in accordance with Texas statute Penal Code Ann. Ð'§ 42.09(a)(3) (1989), after he burned an American flag at a Republican rally in Dallas. Johnson was jailed and fined. Of course ol' Joey Three Guns couldn't just sit there and take it; especially since he was one of only four non-Republicans in Texas at the time. Johnson appealed the case and lost in an intermediate appellate court. However, the Texas Court of Criminal Appeals, or the very highest court in Texas, overturned the conviction, stating that the flag was burned lawfully. Because of the extremity of the case, the Supreme Court granted certiorari. The decision was 5-4 in favor of Three Guns and his fiery act of displeasure. Johnson's First Amendment right of freedom of speech had been extended to an act of expression that was formerly against the law.

Of course we know now that the First Amendment protects not only spoken word, but also written words and now what is called "symbolic expression." However, several landmark cases have shaped the bounds of the Amendment that we now take for granted as protecting written works and acts of expression. Along with this freedom of expression in relationship to acts, flag desecration has a long history in the United States legal system. Before discussing the freedom of expression relating to desecrating an American flag, I will give a short history of such desecration and its ironic importance.

The issue of flag burning and flag desecration first gained attention after the Civil War. Since the Confederates obviously still preferred their Confederate flag over the old Stars and Stripes. In addition, the government was worried that some newly forming corporations would use the flag in advertising and logos. (Why there were worried about that is beyond me). The passing of flag desecration laws in 1897 by 48 states was the beginning of the controversy that has changed along with America. Halter v. Nebraska (1907) (205 U.S. 34) was one of the first cases that demonstrated the seriousness of the law regarding the use of the flag in advertisements. Halter was a beer-bottling-bumpkin who bottled beer under the "Stars and Stripes" label. He was convicted of flag desecration, due to the use of an image of the flag on his bottles, and his conviction was upheld. Unfortunately for Halter, he didn't raise any First Amendment issues in his defense.

The issue of flag desecration was generally silent until 1968 when some peace activists burned several flags in Central Park. Congress then passed a law that banned acts of contempt against the flag. Several years later, the Supreme Court overturned the laws regarding "contempt" of the Flag, citing that it was too vague. This came after a case involving a youth with a Flag sewn on the seat of his pants. Smith v. Gougen 415 U.S. 566 (1974).

In Spence v Washington, a college student at the University of Washington hung an up-side-down flag in his window and attached peace symbols to both sides. After allowing officers into his apartment (why?), the flag was seized and he was charged under a federal law that made it illegal to: "Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement..." The case went to the Supreme Court which decided that Spence's flag was flown on private property, wasn't a security risk, and that it was a "form of communication." Spence