Supreme Court Opinion on Flag Burning in 1989 | Nov 29 2016

Court’s Majority and Dissenting Opinions on the Flag Protection Act of 1989

– New York Times


“Following is the text, without footnotes, of the Supreme Court’s 5-to-4 ruling today that the new Federal law against flag-burning is unconstitutional.

Justice William J. Brennan’s majority opinion was joined by Justices Thurgood Marshall, Harry A. Blackmun, Antonin Scalia and Anthony M. Kennedy.

The dissenting opinion by Justice John Paul Stevens was joined by Chief Justice Rehnquist and by Justices Byron R. White and Sandra Day O’Connor.



By Justice Brennan

Last Term in Johnson, we held that a Texas statute criminalizing the desecration of venerated objects, including the United States flag, was unconstitutional as applied to an individual who had set such a flag on fire during a political demonstration. The Texas statute provided that ”[a] person commits an offense if he intentionally or knowingly desecrates . . . [a] national flag,” where ”desecrate” meant to ”deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.”

We first held that Johnson’s flag-burning was ”conduct ‘sufficiently imbued with elements of communication’ to implicate the First Amendment.” We next considered and rejected the state’s contention that, under United States v. O’Brien, we ought to apply the deferential standard with which we have reviewed Government regulations of conduct containing both speech and nonspeech elements where ”the governmental interest is unrelated to the suppression of free expression.”


We reasoned that the state’s asserted interest ”in preserving the flag as a symbol of nationhood and national unity,” was an interest ”related ‘to the suppression of free expression’ within the meaning of O’Brien” because the state’s concern with protecting the flag’s symbolic meaning is implicated ”only when a person’s treatment of the flag communicates some message.” We therefore subjected the statute to ” ‘the most exacting scrutiny,’ ” quoting Boos v. Barry, (1988), and we concluded that the state’s asserted interests could not justify the infringement on the demonstrator’s First Amendment rights.



By Justice Stevens

The Court’s opinion ends where proper analysis of the issue should begin. Of course ”the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” None of us disagrees with that proposition. But it is equally well settled that certain methods of expression may be prohibited if (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker’s freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition.


The individual interest is unquestionably a matter of great importance. Indeed, it is one of the critical components of the idea of liberty that the flag itself is intended to symbolize. Moreover, it is buttressed by the societal interest in being alerted to the need for thoughtful response to voices that might otherwise go unheard. The freedom of expression protected by the First Amendment embraces not only the freedom to communicate particular ideas, but also the right to communicate them effectively. That right, however, is not absolute – the communicative value of a well-placed bomb in the Capitol does not entitle it to the protection of the First Amendment.

Burning a flag is not, of course, equivalent to burning a public building. Assuming that the protester is burning his own flag, it causes no physical harm to other persons or to their property. The impact is purely symbolic, and it is apparent that some thoughtful persons believe that impact, far from depreciating the value of the symbol, will actually enhance its meaning. I most respectfully disagree.

Indeed, what makes this case particularly difficult for me is what I regard as the damage to the symbol that has already occurred as a result of this Court’s decision to place its stamp of approval on the act of flag-burning. A formerly dramatic expression of protest is now rather commonplace. In today’s marketplace of ideas, the public burning of a Vietnam draft card is probably less provocative than lighting a cigarette. Tomorrow flag burning may produce a similar reaction. There is surely a direct relationship between the communicative value of the act of flag burning and the symbolic value of the object being burned.

….Continue reading @ New York Times


Ohio State students demanded ‘sanctuary campus’ — days before attack

– theAmericanSpectator


“Will Ohio State University students change their tune about sheltering illegal aliens after a refugee has been accused of using a car and knife in a Monday attack on campus?

“Law enforcement officials told NBC News that Artan was a Somali refugee who left his homeland with his family in 2007, lived in Pakistan and then came to the United States in 2014 as a legal permanent resident,” the news site reports.

Eight days earlier, OSU students were circulating a petition, demanding that administrators protect individuals on campus suspected of breaking federal immigration laws.

According to The Latern:

As President-elect Donald Trump rolls out his transition into office, questions are in the air regarding how his policies proposed on the campaign trail might come to fruition. While Trump has backed away from a wall along Mexico’s border, stricter illegal-immigration enforcement still could still come about in other ways, potentially on campus.

That’s the worry of hundreds of students who have signed an online petition asking Ohio State to make its campus a “sanctuary campus” — offering protection against deportation — for students who immigrated to the United States illegally. How much this petition could potentially help, however, is unclear.

“It’s kind of a symbolic action, to show that OSU stands in solidarity with immigrants and that OSU supports the Latino community in Columbus, including those who are involved on campus — not just students but also staff and faculty,” petition signer Anna Babel, assistant professor Hispanic linguistics, told the paper.

Will a suspected terrorist attack by a “legal” refugee who appears to have carried out his attack because of hostility to America cause Ohio State students to rethink harboring illegal immigrants?

….Continue reading @ theAmericanMirror

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