C-SPAN's Supreme Court Broadcasts: Do You Have the Right to Burn the Flag?

This is the second in a series of 10 special Politics Daily columns to complement C-SPAN's broadcasts this fall of audiotape recordings of some of the most famous and important Supreme Court oral arguments of the past 50 years. The C-SPAN broadcasts will afford most Americans their first opportunity to hear the actual words spoken by the justices and the lawyers before them in arguments that shaped the law that has shaped our lives in countless ways. The second featured tape, of the Texas v. Johnson argument over flag-burning in 1989, will be heard on C-SPAN Radio at 6 p.m. ET on Saturday, October 9. Subsequent tapes will be aired each Saturday evening until December 18. Like this one below, subsequent articles will preview each taped argument.

Just a month or so removed from an international controversy involving a threat by a Florida pastor to burn the Koran, and just a few days removed from the emotional funeral protest case heard by the Supreme Court, it is altogether fitting that we hear this week from the justices and the counsel before them an earnest debate over the constitutionality of a state statute that made it a crime to burn one of our national symbols, the American flag.

In the 1989 case of Texas v. Johnson, a divided United States Supreme Court declared 5-4 that the First Amendment to the Constitution barred Texas from criminalizing the "desecration" of a state or national flag. Few cases in recent memory stirred such emotive writing from the justices as they struggled with the proper scope of the protections the free speech clause gave to symbolic speech. And when it was all over, the ruling marked a rare occasion indeed upon which both the most conservative justice on the Court, Antonin Scalia, and its most liberal justice, William Brennan, agreed. Justice Brennan wrote the majority opinion.

The "Johnson" in Texas v. Johnson is George Lee Johnson, an activist protesting the conservative policies of President Ronald Reagan. In the hot summer of 1984, in front of Dallas City Hall during the Republican National Convention there, Johnson burned an American flag and was arrested, charged and convicted of flag desecration under Texas law. Texas argued it had a compelling interest in protecting the flag as a symbol of national unity. Civil libertarians argued that Johnson's symbolic expression captured the very essence of the freedoms the American flag was supposed to represent. The Court ruled, "We never before have held that the Government may ensure that a symbol be used to express only one view of that symbol or its referents."

Two (and only two) of the major players in the oral argument in Texas v. Johnson are still around on the Court today. Justice Scalia and Justice Anthony Kennedy, both Reagan appointees, agreed that the flag ordinance violated the spirit, if not the letter, of the First Amendment's symbolic speech guarantees. Here is what Justice Kennedy, then still a newbie at the post, wrote in his vital concurrence:

"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. 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."

When you listen to the argument in Texas v. Johnson it becomes quickly clear that Justice Scalia, among others, was troubled by the justifications offered by Texas in defense of its criminal statute prohibiting flag-burning. "I think when somebody does that to the flag, the flag becomes even more a symbol of the country...They desecrate the flag, indeed, but do they make it -- do they destroy the symbol? Do they make it any less symbolic of the country?" Justice O'Connor then wanted to know if the Texas law "could prohibit the burning of copies of the Constitution?" No, came the reply from Texas counsel, Kathi Alyce Drew. So why the flag and not the Constitution?, Justice Scalia asked, and why not protect from desecration the Texas state flower?

And then comes to the podium and to your ears William Kunstler, the flamboyant radical lawyer, who by 1989 had achieved great fame representing the Chicago Seven and other criminal and civil defendants. Johnson's cause -- protection from punishment for symbolic speech -- was right up Kunstler's alley and you can hear in his voice the joy with which he sparred with the justices. "I don't think we are going to see eye to eye on this," he joked with Chief Justice William Rehnquist at one point during the argument. At another unusually casual point during oral argument, Kunstler informed the justices that there were actually 17 national flags and that federal law prohibited the displaying of flags in inclement weather. For those of you, like me, too young to remember Kunstler during his prime, hearing his 21-year-old argument today only increases his reputation as a brilliant courtroom orator.

Here is how Kunstler summed up his case:

"And I understand that this flag has serious important meanings...that it has real meaning to real people out there. But that does not mean that it may have different meanings to other people out there and that they may not under the First Amendment show their feelings by what Texas calls desecration of a venerated object. I think it's a most important case. I sense it goes to the heart of the First Amendment, to hear things or to see things that we hate tests the First Amendment more than seeing or hearing things that we like. It wasn't designed for things we like. They never needed a First Amendment."

Six years later, in 1995, Kunstler was dead.

Justice William Brennan, who died in 1997, wrote for the Court's majority "the way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong." In dissent, Chief Justice Rehnquist, and Justices Byron White and Sandra Day O'Connor were edgy. "The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight."

Finally, the footnote. Following Texas v. Johnson, the Congress almost immediately passed the Flag Protection Act of 1989, a federal effort designed to get around the Court's ruling. The Justices quickly accepted a case challenging that statute and again in United States v. Eichman the same five justices who had struck down the Texas law struck down the federal one. And the same four who had dissented in Texas v. Johnson dissented again in Eichman. Oh, and if you have some extra time while you are listening to the oral argument, read Justice John Paul Stevens' dissent in Eichman. It leaves little doubt about where he would stand on the pending funeral protest case if he were still on the bench.