In declaring this Texas law unconstitutional, the court ignored Justice Holmes` well-known aphorism that “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921). For more than 200 years, the American flag has occupied a unique position as a symbol of our nation, a uniqueness that justifies a government ban on burning flags, as the defendant Johnson did here. Texas claims that its interest in preventing breaches of the peace justified Johnson`s conviction for desecrating the flag.4 However, there was no disturbance of the peace or threat due to Johnson`s burning of the flag. Although the state points to the disruptive behavior of the protesters during their march to City Hall, letter for petitioners 34-36, it admits that “no actual violation of the peace took place at the time of the flag burning or in response to the burning of the flag.” Id., p. 34. The state`s focus on the disorderly actions of protesters before they arrived at City Hall is not only somewhat surprising, as no charges were laid for this behavior, but also does not show that disturbing the peace was a likely response to Johnson`s behavior. The only evidence the state presented at the trial to show reaction to Johnson`s actions was the testimony of several people who had been gravely offended by burning the flag. Id., pp.
6-7. At the 1984 Republican National Convention in Dallas, Texas, Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based companies. After marching through the streets of the city, Johnson burned an American flag as protesters chanted slogans. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag fire. Johnson was convicted of desecrating a revered object in violation of a Texas law, and a state appeals court upheld that. However, the Texas Court of Criminal Appeals overturned that decision, ruling that, under the First Amendment, the state could not punish Johnson for burning the flag under these circumstances. The court first found that Johnson`s burning of the flag was expressive behavior protected by the First Amendment. The court concluded that the state could not criminally sanction the desecration of the flag in order to preserve the flag as a symbol of national unity. Nor does the Act correspond to the State`s objective of preventing breaches of public order, since it is not sufficiently narrow to cover only the burning of the flag which could cause serious disturbances and the burning of the flag in the present case does not threaten such a reaction. In addition, he pointed out that another Texas law prohibits violations of the peace and can be used to prevent riots without punishing this desecration of the flag. The ideas of freedom and equality were an irresistible force for leaders like Patrick Henry, Susan B. Anthony and Abraham Lincoln, teachers like Nathan Hale and Booker T.
Washington, to motivate the Filipino scouts who fought in Bataan and the soldiers who climbed the cliff of Omaha Beach. While these ideas are worth defending—and our history shows they are—it cannot be true that the flag that symbolizes their power in a unique way is not itself worthy of protection from unnecessary desecration. In another related case, Smith v. Goguen, 415 U.S. 566, 94 § Ct. 1242, 39 L.Ed.2d 605 (1974), the appellant, who wore a small flag on the seat of his pants, was convicted under a Massachusetts law on the abuse of the flag that held anyone “publicly.” treats the flag of the United States with contempt.” Id., pp. 568-569, 94 S.Ct., pp. 1244-1245. The court upheld the lower court`s quashing of the appellant`s conviction on the basis that the phrase “treated with contempt” was unconstitutional, broad and vague. Id., at 576, 94 S.Ct., at 1248.
The Court reiterated that “nothing prevents a legislature from defining with considerable precision what constitutes prohibited treatment of American flags.” Id., at 581-582, 94 p.Ct., at 1251. See also id., at 587, 94 S.Ct., at 1254 (WHITE, J., approving in judgment) (“The flag is a national good, and the nation may regulate those who produce, imitate, sell, possess or use it. I would not question laws that prohibit the mutilation, degradation or burning of the flag, or that otherwise protect its physical integrity, whether or not such conduct may cause violence. There seems to be little doubt about the power of Congress to prohibit the mutilation of the Lincoln Memorial. The flag itself is a monument subject to similar protection”); id., at 591, 94 S.Ct., at 1256 (BLACKMUN, J., deviant) (“Goguen`s sentence was constitutionally permissible because he violated the physical integrity of the flag by wearing it on the seat of his trousers”). However, we have not automatically concluded that every action taken in relation to our flag is expressive. Instead, in characterizing these measures for First Amendment purposes, we looked at the context in which they occurred. In Spence, for example, we pointed out that Spence`s masking of a peace sign on his flag “was, and certainly was, a tragedy around the same time as the Cambodian invasion and the state of Kent.” 418 U.S., at 410, 94 S.Ct., at 2730. Washington State had indeed acknowledged that Spence`s behavior was a form of communication, and we stated that “the concession of the state is inevitable in this matter.” Id., at 409, 94 S.Ct., at 2730. The Court concludes its opinion with an unfortunately condescending lecture on civic education, presumably addressed to members of both houses of Congress, members of the 48 state legislatures that have banned the burning of flags, and troops fighting under this flag in Vietnam who opposed their burning: “The manner of preserving the special role of the flag, is not to punish those who think differently on these issues.