Did Urbana Flag Burner Break the Law? (No, Here’s Why)

Yesterday, an Urbana man caused a controversy by burning an American flag, and posting the scene on Facebook with a searing political critique against his country.

A similar case was decided by a 5-4 vote in favor of a flag-burner in Texas v. Johnson (1989).

To protest President Reagan’s policies, Gregory Lee Johnson burned a flag outside the City Hall building in Dallas, Texas, in 1984. As in Urbana, many people were deeply offended. Texas arrested Johnson and convicted him of breaking a Texas state law that prohibited desecration of the flag of the United States. Johnson was sentenced to one year in prison and ordered to pay a $2,000 fine.

Johnson appealed his conviction, claiming First Amendment protection, and the Texas Court of Criminal Appeals stated that Johnson’s speech was symbolic and ruled in his favor.

Writing for the majority, Justice Anthony Kennedy reasoned: “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result,” Kennedy said. “And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

“Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt,” he said.

That didn’t end the matter. In 1990, Congress enacted an anti-flag burning law called the Flag Protection Act of 1989. But in 1990, the Court struck down that law as unconstitutional. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” said Justice William Brennan.

For more, see “Inside the Supreme Court’s Flag Burning Decision,” published by the Constitution Daily, at this link. For the full opinion in Johnson v. Texas, click here.