U.S. Supreme Court
UNITED STATES v. EICHMAN, 496 U.S. 310 (1990)
496 U.S. 310
UNITED STATES v. EICHMAN ET AL.
APPEAL FROM THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
No. 89-1433.
Argued May 14, 1990
Decided June 11, 1990 *
After this Court held, in Texas v. Johnson, 491 U.S. 397 , that a Texas statute criminalizing desecration of the
United States flag in a way that the actor knew would seriously offend onlookers was unconstitutional as
applied
to an individual who had burned a flag during a political protest, Congress passed the Flag Protection
Act of
1989. The Act criminalizes the conduct of anyone who "knowingly mutilates, defaces, physically defiles,
burns,
maintains on the floor or ground, or tramples upon" a United States flag, except conduct related to the
disposal
of a "worn or soiled" flag. Subsequently, appellees were prosecuted in the District Courts for violating
the Act:
some for knowingly burning several flags while protesting various aspects of the Government's
policies, and
others, in a separate incident, for knowingly burning a flag while protesting the Act's passage. In
each case,
appellees moved to dismiss the charges on the ground that the Act violates the First Amendment.
Both District
Courts, following Johnson, supra, held the Act unconstitutional as applied and dismissed the
charges.
Held:
Appellees' prosecution for burning a flag in violation of the Act is inconsistent with the First Amendment. The
Government concedes, as it must, that appellees' flag burning constituted expressive conduct, and this Court
declines to reconsider its rejection in Johnson of the claim that flag burning as a mode of expression does not
enjoy the First Amendment's full protection. It is true that this Act, unlike the Texas law, contains no explicit
content-based limitation on the scope of prohibited conduct. Nevertheless, it is clear that the Government's
asserted interest in protecting the "physical integrity" of a privately owned flag in order to preserve the flag's
status as a symbol of the Nation and certain national ideals is related to the suppression, and concerned with
the content, of free expression. The mere destruction or disfigurement of a symbol's physical manifestation
does not diminish or otherwise affect the symbol itself. The Government's interest is implicated only when a
person's treatment of the flag communicates a message to others that is inconsistent with the identified ideals.
The precise language of the Act's [496 U.S. 310, 311] prohibitions confirms Congress' interest in the
communicative impact of flag destruction, since each of the specified terms - with the possible exception of
"burns" - unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to
damage the flag's symbolic value, and since the explicit exemption for disposal of "worn or soiled" flags
protects certain acts traditionally associated with patriotic respect for the flag. Thus, the Act suffers from the
same fundamental flaw as the Texas law, and its restriction on expression cannot "`be justified without
reference to the content of the regulated speech,'" Boos v. Barry, 485 U.S. 312, 320 . It must therefore be
subjected to "the most exacting scrutiny," id., at 321, and, for the reasons stated in Johnson, supra, at
413-415,
the Government's interest cannot justify its infringement on First Amendment rights. This conclusion
will not be
reassessed in light of Congress' recent recognition of a purported "national consensus" favoring a
prohibition
on flag burning, since any suggestion that the Government's interest in suppressing speech
becomes more
weighty as popular opposition to that speech grows is foreign to the First Amendment. While
flag desecration -
like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous
caricatures - is deeply
offensive to many, the Government may not prohibit the expression of an idea simply
because society finds the
idea itself offensive or disagreeable.
Pp. 313-319.
No. 89-1433, 731 F. Supp. 1123; No. 89-1434, 731 F. Supp. 415, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, SCALIA, and
KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and WHITE and
O'CONNOR, JJ., joined, post, p. 319.
[ Footnote * ] Together with No. 89-1434, United States v. Haggerty et al., on appeal from the District Court for
the Western District of Washington.
Solicitor General Starr argued the cause for the United States. With him on the briefs were Assistant Attorney
General Dennis, Deputy Solicitor General Roberts, and Michael R. Lazerwitz.
William M. Kunstler argued the cause for appellees in both cases. With him on the brief in both cases were
Ronald L. Kuby, David D. Cole, Nina Kraut, and Kevin Peck. Charles S. Hamilton III, by appointment of the
Court, 495 U.S. 902 , filed a brief in No. 89-1434 for appellee Strong.Fn
Fn [496 U.S. 310, 311] Briefs of amici curiae urging reversal were filed for the United States Senate by
Michael
Davidson, Ken U. Benjamin, Jr., and Morgan J. Frankel; for Senator Joseph R. Biden, Jr., by Kenneth
S. Geller,
Andrew J. Pincus, and Roy T. Englert, Jr.; [496 U.S. 310, 312] for Governor Mario M. Cuomo by
Evan A. Davis;
and for the Southeastern Legal Foundation, Inc., by Robert L. Barr, Jr., and G. Stephen
Parker.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Charles
Fried,
Kathleen M. Sullivan. Norman Dorsen, and Steven R. Shapiro; for the Association of Art Museum
Directors et
al. by James C. Goodale; for the National Association for the Advancement of Colored People by
Charles E.
Carter; for People for the American Way et al. by Timothy B. Dyk, Glen D. Nager, and Elliot M.
Mincberg; and
for Jasper Johns et al. by Robert G. Sugarman and Gloria C. Phares.
Briefs of amici curiae were filed for the Speaker and Leadership Group of the United States House of
Representatives by Steven R. Ross, Charles Tiefer, Michael L. Murray, Janina Jaruzelski, and Robert Michael
Long; and for the American Bar Association by Stanley Chauvin, Jr., Randolph W. Thrower, and Robert B.
McKay. [496 U.S. 310, 312]
JUSTICE BRENNAN delivered the opinion of the Court.
In these consolidated appeals, we consider whether appellees' prosecution for burning a United States flag in
violation of the Flag Protection Act of 1989 is consistent with the First Amendment. Applying our recent
decision in Texas v. Johnson, 491 U.S. 397 (1989), the District Courts held that the Act cannot constitutionally
be applied to appellees. We affirm.
I
In No. 89-1433, the United States prosecuted certain appellees for violating the Flag Protection Act of 1989,
103 Stat. 777, 18 U.S.C. 700 (1988 ed. and Supp. I), by knowingly setting fire to several United States flags
on
the steps of the United States Capitol while protesting various aspects of the Government's domestic and
foreign policy. In No. 89-1434, the United States prosecuted other appellees for violating the Act by knowingly
setting fire to a United States flag in Seattle while protesting the Act's passage. In each case, the respective
appellees moved to dismiss the flag-burning charge on the ground that the Act, both on its face and as
applied,
violates the First Amendment. Both the [496 U.S. 310, 313] United States District Court for the
Western District
of Washington, 731 F. Supp. 415 (1990), and the United States District Court for the District
of Columbia, 731
F. Supp. 1123 (1990), following Johnson, supra, held the Act unconstitutional as applied to
appellees and
dismissed the charges. 1 The United States appealed both decisions directly to this Court
pursuant to 18
U.S.C. 700(d) (1982 ed., Supp. I). 2 We noted probable jurisdiction and consolidated the two
cases. 494 U.S.
1063 (1990).
II
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." Tex. Penal Code Ann. 42.09 (1989). We first held that Johnson's flag burning
was "conduct
`sufficiently imbued with elements of communication' to implicate the First Amendment." 491
U.S., at 406
(citation omitted). We next considered and rejected the State's contention that, under United
States v. O'Brien,
[496 U.S. 310, 314] 391 U.S. 367 (1968), 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." Id., at 377. 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." Johnson, supra, at 410. We therefore subjected the statute to "the most
exacting scrutiny,'"
491 U.S., at 412 , quoting Boos v. Barry, 485 U.S. 312, 321 (1988), and we concluded that
the State's asserted
interests could not justify the infringement on the demonstrator's First Amendment rights.
After our decision in Johnson, Congress passed the Flag Protection Act of 1989. 3 The Act provides in
relevant
part:
"(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or
tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one
year, or both.
"(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become
worn
or soiled.
"(b) As used in this section, the term `flag of the United States' means any flag of the United States, or any part
thereof, made of any substance, of any size, in a form that is commonly displayed." 18 U.S.C. 700 (1988 ed.,
Supp. I). [496 U.S. 310, 315]
The Government concedes in these cases, as it must, that appellees' flag burning constituted expressive
conduct, Brief for United States 28; see Johnson, 491 U.S., at 405 -406, but invites us to reconsider our
rejection in Johnson of the claim that flag burning as a mode of expression, like obscenity or "fighting words,"
does not enjoy the full protection of the First Amendment. Cf. Chaplinsky v. New Hampshire, 315 U.S. 568,
572
(1942). This we decline to do. 4 The only remaining question is whether the Flag Protection Act is
sufficiently
distinct from the Texas statute that it may constitutionally be applied to proscribe appellees'
expressive conduct.
The Government contends that the Flag Protection Act is constitutional because, unlike the statute addressed
in
Johnson, the Act does not target expressive conduct on the basis of the content of its message. The
Government asserts an interest in "protect[ing] the physical integrity of the flag under all circumstances" in
order
to safeguard the flag's identity "`as the unique and unalloyed symbol of the Nation.'" Brief for United
States 28,
29. The Act proscribes conduct (other than disposal) that damages or mistreats a flag, without
regard to the
actor's motive, his intended message, or the likely effects of his conduct on onlookers. By
contrast, the Texas
statute expressly prohibited only those acts of physical flag desecration "that the actor
knows will seriously
offend" onlookers, and the former federal statute prohibited only those acts of desecration
that "cas[t] contempt
upon" the flag.
Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited
conduct, it is nevertheless clear that the Government's asserted interest is "related `to the suppression of free
expression,'" 491 U.S., at 410 , and concerned with the content of such expression. The Government's interest
in protecting the "physical integrity" [496 U.S. 310, 316] of a privately owned flag 5 rests upon a perceived
need
to preserve the flag's status as a symbol of our Nation and certain national ideals. But the mere
destruction or
disfigurement of a particular physical manifestation of the symbol, without more, does not
diminish or otherwise
affect the symbol itself in any way. For example, the secret destruction of a flag in one's
own basement would
not threaten the flag's recognized meaning. Rather, the Government's desire to preserve
the flag as a symbol
for certain national ideals is implicated "only when a person's treatment of the flag
communicates [a] message"
to others that is inconsistent with those ideals. 6 Ibid. [496 U.S. 310, 317]
Moreover, the precise language of the Act's prohibitions confirms Congress' interest in the communicative
impact of flag destruction. The Act criminalizes the conduct of anyone who "knowingly mutilates, defaces,
physically defiles, burns, maintains on the floor or ground, or tramples upon any flag." 18 U.S.C. 700(a)(1)
(1988
ed., Supp. I). Each of the specified terms - with the possible exception of "burns" - unmistakably
connotes
disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's
symbolic
value. 7 And the explicit exemption in 700(a)(2) for disposal of "worn or soiled" flags protects certain
acts
traditionally associated with patriotic respect for the flag. 8
As we explained in Johnson, supra, at 416-417: "[I]f we were to hold that a State may forbid flag burning
wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role
-
as where, for example, a person ceremoniously burns a dirty flag - we would be . . . permitting a State to
`prescribe what shall be orthodox' by saying that one may burn the flag to convey one's attitude toward it and
its
referents only if one does not endanger the flag's representation of nationhood and national unity." Although
Congress cast the Flag Protection Act of 1989 in somewhat broader terms than the Texas statute at issue in
Johnson, the Act still suffers from the same fundamental flaw: It suppresses expression out of concern for its
likely communicative impact. Despite the Act's wider scope, [496 U.S. 310, 318] its restriction on expression
cannot be "`justified without reference to the content of the regulated speech.'" Boos, 485 U.S., at 320
(emphasis omitted) (citation omitted); see Spence v. Washington, 418 U.S. 405, 414 , nn. 8, 9 (1974) (State's
interest in protecting flag's symbolic value is directly related to suppression of expression and thus O'Brien test
is inapplicable even where statute declared "simply . . . that nothing may be affixed to or superimposed on a
United States flag"). The Act therefore must be subjected to "the most exacting scrutiny," Boos, supra, at 321,
and for the reasons stated in Johnson, 491 U.S., at 413 -415, the Government's interest cannot justify its
infringement on First Amendment rights. We decline the Government's invitation to reassess this conclusion in
light of Congress' recent recognition of a purported "national consensus" favoring a prohibition on flag burning.
Brief for United States 27. Even assuming such a consensus exists, any suggestion that the Government's
interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign
to
the First Amendment.
III
"`National unity as an end which officials may foster by persuasion and example is not in question.'" Johnson,
supra, at 418, quoting West Virginia Board of Education v. Barnette, 319 U.S. 624, 640 (1943). Government
may create national symbols, promote them, and encourage their respectful treatment. 9 But the Flag
Protection Act of 1989 goes well beyond this by criminally proscribing expressive conduct because of its likely
communicative impact.
We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for
example,
of virulent ethnic and religious epithets, see Terminiello v. Chicago, 337 U.S. 1 (1949), vulgar
repudiations of
the draft, see [496 U.S. 310, 319] Cohen v. California, 403 U.S. 15 (1971), and scurrilous
caricatures, see
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). "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." Johnson, supra, at 414. Punishing desecration of the flag dilutes the
very freedom that makes this emblem so revered, and worth revering. The judgments of the District Courts are
Affirmed.
Footnotes
[ Footnote 1 ] The Seattle appellees were also charged with causing willful injury to federal property in violation
of 18 U.S.C. 1361 and 1362. This charge remains pending before the District Court, and nothing in today's
decision affects the constitutionality of this prosecution. See n. 5, infra.
[ Footnote 2 ] "(1) An appeal may be taken directly to the Supreme Court of the United States from any
interlocutory or final judgment, decree, or order issued by a United States district court ruling upon the
constitutionality of subsection (a).
"(2) The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal
and advance on the docket and expedite to the greatest extent possible." 18 U.S.C. 700(d) (1988 ed., Supp.
I).
[ Footnote 3 ] The Act replaced the then-existing federal flag-burning statute, which Congress perceived might
be unconstitutional in light of Johnson. Former 18 U.S.C. 700(a) prohibited "knowingly cast[ing] contempt upon
any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it."
[ Footnote 4 ] We deal here with concededly political speech and have no occasion to pass on the validity of
laws regulating commercial exploitation of the image of the United States flag. See Texas v. Johnson, 491
U.S.
397, 415 -416, n. 10 (1989); cf. Halter v. Nebraska, 205 U.S. 34 (1907).
[ Footnote 5 ] Today's decision does not affect the extent to which the Government's interest in protecting
publicly owned flags might justify special measures on their behalf. See Spence v. Washington, 418 U.S. 405,
408 -409 (1974): cf. Johnson, supra, at 412-413, n. 8.
[ Footnote 6 ] Aside from the flag's association with particular ideals, at some irreducible level the flag is
emblematic of the Nation as a sovereign entity. The Government's amici assert that it has a legitimate
nonspeech-related interest in safeguarding this "eminently practical legal aspect of the flag, as an incident of
sovereignty." Brief for the Speaker and Leadership Group of the U.S. House of Representatives as Amici
Curiae 25. This interest has firm historical roots: "While the symbolic role of the flag is now well-established,
the
flag was an important incident of sovereignty before it was used for symbolic purposes by patriots and
others.
When the nation's founders first determined to adopt a national flag, they intended to serve specific
functions
relating to our status as a sovereign nation." Id., at 9: see id., at 5 (noting "flag's `historic function' for
such
sovereign purposes as marking `our national presence in schools, public buildings, battleships and
airplanes'")
(citation omitted).
We concede that the Government has a legitimate interest in preserving the flag's function as an "incident of
sovereignty," though we need not address today the extent to which this interest may justify any laws regulating
conduct that would thwart this core function, as might a commercial or like appropriation of the image of the
United States flag. Amici do not, and cannot, explain how a statute that penalizes anyone who knowingly burns,
mutilates, or defiles any American flag is designed to advance this asserted interest in maintaining the
association between the flag and the Nation. Burning a flag does not threaten to [496 U.S. 310, 317] interfere
with this association in any way; indeed, the flag burner's message depends in part on the viewer's ability to
make this very association.
[ Footnote 7 ] For example, "defile" is defined as "to make filthy; to corrupt the purity or perfection of; to rob of
chastity; to make ceremonially unclean; tarnish, dishonor." Webster's Third New International Dictionary 592
(1976). "Trample" is defined as "to tread heavily so as to bruise, crush, or injure; to inflict injury or destruction:
have a contemptuous or ruthless attitude." Id., at 2425.
[ Footnote 8 ] The Act also does not prohibit flying a flag in a storm or other conduct that threatens the physical
integrity of the flag, albeit in an indirect manner unlikely to communicate disrespect.
[ Footnote 9 ] See, e. g., 36 U.S.C. 173-177 (suggesting manner in which flag ought to be displayed).
JUSTICE STEVENS, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR
join, dissenting.
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." Ante
this page. 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.
Contrary to the position taken by counsel for the flag burners in Texas v. Johnson, 491 U.S. 397 (1989), it is
now
conceded that the Federal Government has a legitimate interest in protecting the symbolic value of the
American flag. Obviously that value cannot be measured, or even described, with any precision. It has at least
these two components: In times of national crisis, it inspires and motivates the average citizen to make
personal sacrifices in order to achieve societal goals of overriding importance; at all times, it serves as a
reminder [496 U.S. 310, 320] of the paramount importance of pursuing the ideals that characterize our
society.
The first question the Court should consider is whether the interest in preserving the value of that symbol is
unrelated to suppression of the ideas that flag burners are trying to express. In my judgment the answer
depends, at least in part, on what those ideas are. A flag burner might intend various messages. The flag
burner may wish simply to convey hatred, contempt, or sheer opposition directed at the United States. This
might be the case if the flag were burned by an enemy during time of war. A flag burner may also, or instead,
seek to convey the depth of his personal conviction about some issue, by willingly provoking the use of force
against himself. In so doing, he says that "my disagreement with certain policies is so strong that I am
prepared
to risk physical harm (and perhaps imprisonment) in order to call attention to my views." This second
possibility
apparently describes the expressive conduct of the flag burners in these cases. Like the protesters
who
dramatized their opposition to our engagement in Vietnam by publicly burning their draft cards - and who
were
punished for doing so - their expressive conduct is consistent with affection for this country and respect
for the
ideals that the flag symbolizes. There is at least one further possibility: A flag burner may intend to make
an
accusation against the integrity of the American people who disagree with him. By burning the embodiment
of
America's collective commitment to freedom and equality, the flag burner charges that the majority has
forsaken
that commitment - that continued respect for the flag is nothing more than hypocrisy. Such a charge
may be
made even if the flag burner loves the country and zealously pursues the ideals that the country claims
to honor.
The idea expressed by a particular act of flag burning is necessarily dependent on the temporal and political
context in which it occurs. In the 1960's it may have expressed opposition to the country's Vietnam policies, or
at least to the [496 U.S. 310, 321] compulsory draft. In Texas v. Johnson, it apparently expressed opposition to
the platform of the Republican Party. In these cases, the appellees have explained that it expressed their
opposition to racial discrimination, to the failure to care for the homeless, and of course to statutory
prohibitions
of flag burning. In any of these examples, the protesters may wish both to say that their own
position is the only
one faithful to liberty and equality, and to accuse their fellow citizens of hypocritical
indifference to - or even of a
selfish departure from - the ideals which the flag is supposed to symbolize. The
ideas expressed by flag
burners are thus various and often ambiguous.
The Government's legitimate interest in preserving the symbolic value of the flag is, however, essentially the
same regardless of which of many different ideas may have motivated a particular act of flag burning. As I
explained in my dissent in Johnson, 491 U.S., at 436 -439, the flag uniquely symbolizes the ideas of liberty,
equality, and tolerance - ideas that Americans have passionately defended and debated throughout our
history.
The flag embodies the spirit of our national commitment to those ideals. The message thereby
transmitted
does not take a stand upon our disagreements, except to say that those disagreements are best
regarded as
competing interpretations of shared ideals. It does not judge particular policies, except to say that
they
command respect when they are enlightened by the spirit of liberty and equality. To the world, the flag is
our promise that we will continue to strive for these ideals. To us, the flag is a reminder both that the struggle
for
liberty and equality is unceasing, and that our obligation of tolerance and respect for all of our fellow citizens
encompasses those who disagree with us - indeed, even those whose ideas are disagreeable or offensive.
Thus, the Government may - indeed, it should - protect the symbolic value of the flag without regard to the
specific content of the flag burners' speech. The prosecution in these [496 U.S. 310, 322] cases does not
depend upon the object of the defendants' protest. It is, moreover, equally clear that the prohibition does not
entail any interference with the speaker's freedom to express his or her ideas by other means. It may well be
true that other means of expression may be less effective in drawing attention to those ideas, but that is not
itself a sufficient reason for immunizing flag burning. Presumably a gigantic fireworks display or a parade of
nude models in a public park might draw even more attention to a controversial message, but such methods of
expression are nevertheless subject to regulation.
These cases therefore come down to a question of judgment. Does the admittedly important interest in
allowing
every speaker to choose the method of expressing his or her ideas that he or she deems most
effective and
appropriate outweigh the societal interest in preserving the symbolic value of the flag? This
question, in turn,
involves three different judgments: (1) The importance of the individual interest in selecting
the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether
tolerance of flag
burning will enhance or tarnish that value. The opinions in Texas v. Johnson demonstrate that
reasonable judges
may differ with respect to each of these judgments.
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. [496 U.S. 310, 323]
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 these cases
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.
The symbolic value of the American flag is not the same today as it was yesterday. Events during the last three
decades have altered the country's image in the eyes of numerous Americans, and some now have difficulty
understanding the message that the flag conveyed to their parents and grandparents - whether born abroad
and naturalized or native born. Moreover, the integrity of the symbol has been compromised by those leaders
who seem to advocate compulsory worship of the flag even by individuals whom it offends, or who seem to
manipulate the symbol of national purpose into a pretext for partisan disputes about meaner ends. And, as I
have suggested, the residual value of the symbol after this Court's decision in Texas v. Johnson is surely not
the
same as it was a year ago.
Given all these considerations, plus the fact that the Court today is really doing nothing more than reconfirming
what it has already decided, it might be appropriate to defer to the judgment of the majority and merely apply
the doctrine of [496 U.S. 310, 324] stare decisis to the cases at hand. That action, however, would not honestly
reflect my considered judgment concerning the relative importance of the conflicting interests that are at stake.
I
remain persuaded that the considerations identified in my opinion in Texas v. Johnson are of controlling
importance in these cases as well.
Accordingly, I respectfully dissent. [496 U.S. 310, 325]
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