John's blog on First Amendment cases-Freedom of Expression (Flag Burning)

The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment is necessarily ambiguous in terms of specific application and occurrence of the liberties and freedoms outlined under it. The powerful rights outlined in the Amendment can just as easily be upheld in the strictest (or most philosophical) sense as they can be circumvented/overlooked at the specific interest of the government. As each following court cases show, decisions regarding broad freedoms, in this case the freedom of speech as well as expression, are subject to individual interpretation as well as the context in which a decision was made.

In 1968, a man named David Paul O’Brien (respondent), along with three companions, decided to protest the Vietnam War by burning their selective service papers on the steps of the South Boston Courthouse. After being indicted, tried, and convicted of violating the Universal Military Training and Service Act of 1948 (making it illegal to mutilate or destroy such certificates as amended in 1965) by the U.S. District Court for the District of Massachusetts(petitioner). O’Brien argued that the intent behind burning the certificates was, “so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position.” In the District Court, O’Brien argued that the 1965 Amendment was, “unconstitutional because it was enacted to abridge free speech, and because it served no legitimate purpose.” The case was taken to the Court of Appeals, which, contrary to the decision of the District Court, found the statute was in fact unconstitutional. From here the case went to the Supreme Court.

O’Brien took the fact that a person had to keep the certification and registration certificates of the Selective Service in their possession at all times to be a suppression of his First Amendment Rights as it prevented him from expressing his personal opinions. This argument caused the Justices to reflect on what actually constitutes “speech” or legitimate expression and to what criteria does a form of expression have to meet to be labeled as “sufficiently imbued with elements of communication.” This issue of whether or not an act or a person’s conduct clearly reflects/implies a particular disposition or idea is the precedent for which this case begins: that of symbolic speech protected by the First Amendment.

Nevertheless, despite this interesting crux, the Justices were able to avoid it altogether in making the final adjudication on the case at hand. In response to O’Brien’s claim that the 1965 Amendment abridges free speech, Justice Warren wrote, “The Amendment does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views.” Here, he is saying that the charges are not based on O’Brien’s viewpoints or his expression, but rather the violation of federal law, which happened to coincide (or manifest itself) with O’Brien’s expressive conduct. To clarify, it was said, “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms… we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest… and if the incidental restriction on alleged First Amendment freedoms is no greater than it is essential to the furtherance of that interest.” This makes much sense on the surface, as the government may have to side step a certain “freedom” or legitimate argument if, all in all, the general action or undertaking of particular conduct is illegal in its nature. However, many feel the sentiment behind this resolution was actually that to suppress “dissident” individuals in a time when anti-war protests were common and the Vietnam War was not very popular. Some feel the intention of allowing the temporary overlook or suppression of the First Amendment is a way of effectively quelling any agitating or boisterous form of expression; the very kind that the First Amendment was intended to protect.

O’Brien provides the perfect example as if someone wants to express themselves, the act and or conduct in which the expression is manifested must not only have undeniable expressive symbolism, but it must also fall within the realm of the law. Here, the thought behind the burning of the Selective Service papers was not brought under scrutiny (though many may argue to the contrary) but the means of expression were deemed clearly outside the boundaries of the law as to illicitly defeat the original thought and power Congress had in passing the 1965 Amendment. To justify this, the Supreme Court agreed that the powers Congress has in raising and supporting armies is “necessary and proper” and that O’Brien’s actions interfered directly with their intentions of Congress. It was said, “Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction… [as] destruction of cards would disrupt the smooth functioning of the Selective Service System.” In this way, the Supreme Court affirmed the judgment of the District Court as none of O’Brien’s several tapering arguments held any ground in the end. There will always be the possibility that the Court’s decision was largely influenced by the “nature” of O’Brien’s opinions and future Court decisions would shed more light onto the effect/nature of the messages being expressed, and the outcome of the case.

The Constitutional questions addressed in the case were twofold. The issue of the extent to which the First Amendment protects symbolically expressive conduct/behavior was addressed, as well as the ability for the government to disregard certain freedoms if a particular issue is interpreted as being more significant and necessitates the sacrifice. Also, the case had precedence by developing the “O’Brien test” in which a law is examined to see whether or not it regulates the freedom of speech in a way violating the First Amendment (or intentionally designed to prevent negative expression).

In 1970 with the case of Schacht v. United States, Daniel Jay Schacht (petitioner) was accused by a District Court (respondent) of violating a law making it illegal for anyone “without authority [to wear] the uniform or a distinctive part thereof… of any of the armed forces of the United States…” Another law regarding military uniforms was also in effect stating, “While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.” Schacht performed a theatrical “skit” in Houston with a few fellow actors in which they depicted a military scene in Vietnam in an attempt to express their discontent with the war. The argument of the District Court was that Schacht was not officially acting and was should not be treated as a “theatrical production” in its own right. Furthermore, the court found fault with the negative sentiments the skit regarding America’s involvement in Vietnam.

Once this case reached the Supreme Court, it was quickly decided that a theatrical performance does not have to be defined by convention such as performances that typically take place on stages in theaters. Furthermore, the Supreme Court Justices found fault with the clause saying, “…it becomes clear that Congress has in effect made it a crime for an actor wearing a military uniform to say things during his performance critical of the conduct of or policies of the Armed Forces. An actor, like everyone else in our country, enjoys a constitutional right to freedom of speech, including the right to openly criticize the Government during a dramatic performance.” With this, the clause was “stricken” from the section, Schacht was acquitted, and it became legal to put on a performance that was critical of the government as a freedom of expression under the First Amendment.

A few years later in 1974, the case of Spence v. Washington reached the Supreme Court. A few years prior, a college student named Spence hung his own American flag out of his apartment that was upside down and had a peace symbol on both sides of the flag (formed from tape) as a way of protesting the Cambodian incursion and the Kent State Massacre. The appellant said in his defense, “I felt there had been so much killing and that this was not what America stood for. I felt that the flag stood for America and I wanted people to know that I thought America stood for peace.” After being tried and found guilty by a jury, the case was addressed by the Supreme Court. The issue proved to be significant in the minds of all of the justices as there seemed to be division in their final decision. What came to be was an understanding that the private ownership of the flag, as well as the temporary nature of the symbol made it so that it was clearly a form of expression protected under the First Amendment. It was said. “But the nature of the appellant’s activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression… On this record there can be little doubt that appellant communicated through the use of symbols. The symbolism included not only the flag but also the superimposed peace symbol.” Here, it seems that the fact that the symbol is “enhancing” the strong meaning of the flag, it was easier for the court to make the decision that such expression was protected under the First Amendment, though the Court never really addressed whether permanent destruction or alteration was a protected form of expression when it comes to the flag. Furthermore, the special place the flag held in people’s hearts (as it is regarded as embodying all of the values of America) was evident in Justice Rehnquist’s dissent. Rehnquist seemed to agree with the state that the flag was not justice a typical median to express an idea. His logic was, “The Court has further recognized that even protected speech may be subject to reasonable limitation when important countervailing interests are involved… The right to free speech, though precious, remains subject to reasonable accommodation to other valued interests… It [the state’s decision] simply withdraws a unique national symbol from the roster of materials that may be used as a background for communications.” From this it seems that though it was generally recognized that the flag was an important American symbol, the decisions on the issue were split. The issue addressed was similar to O’Brien’s in that there was still subjectivity when it came to deciding what constitutes free speech/expression. Were some items to be left out of protection by the First Amendment? The following case develops this issue regarding the flag further.

The next major flag burning case took place in 1989, a few years after the “Republican War Chest Tour” in which demonstrators protested the policies of the Reagan administration and certain corporations in the Dallas area. One day while protesting, a man named Gregory Lee Johnson was handed an American flag and promptly burned it in front of Dallas City Hall. He was charged with the “desecration of a venerated object in violation of Texas Penal Code.” He was convicted and sentenced to one year in prison as well as a $ 2,000 dollar fine. The Texas Court of Criminal Appeals denied to agree with the conviction and was granted certiorari allowing the case to go to the Supreme Court. To come to a decision, the court, based on precedence and insight gained from passed cases, had to interpret the specific actions of Johnson as well as the nature of the charges that the state of Texas brought against him and compare the two. Drawing from the O’Brien case, the Court was determined to use the “O’Brien’s test” to determine whether or not the state was justified in suppressing Johnson’s free speech assuming his conduct was protected under the First Amendment.

In speaking about the nature of the American flag, it was said, “The very purpose of our national flag is to serve as a symbol of our country; it is, one might say, ‘the one visible manifestation of two hundred years of nationhood’…Pregnant with the expressive content, the flag as readily signifies this Nation as does the combination of letters found in ‘America.’” It was clear that the justices regarded the flag as a very symbolic and meaningful mode of embodying and “communicating” the almost sacred principles of the country. The Court acknowledged that Johnson’s conduct was clearly associated with the renomination of Ronald Reagan and his administration. Johnson said, “The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time. It’s quite the just position [juxtaposition]. We had new patriotism and no patriotism.” From this, the Court concluded that Johnson’s actions were protected under the First Amendment as it stands. Now, the Court had to analyze if the arguments of the State validated a restriction of that right.

The defense of the accusation made by the state of Texas against Johnson was that it was done in “preventing breaches of peace and preserving the flag as a symbol of nationhood and national unity.” The court said the breach of peace defense was unfounded in that the very freedom of speech American’s have is designed to ensure their right to invite dispute, avoid any sense of complacency or repression, and even to stir people to anger. It was also seen as a far stretch to imply that the expression of one person will provoke violence or any other illegal reaction. In this way, Johnson’s conduct was very consistent within the thought behind the First Amendment. In this way, the issue became whether or not the states interest in preserving the uniquely special or almost “sacred” nature of the flag was legally justifiable.

This seemed to put the Court in a bit of an exposed, yet admirable position as the justices clearly regarded the flag as a timeless emblem of this nation, (seemingly admitting the sheer offense of Johnson’s action) though felt that the issue at hand was not subject to biased regard, but rather the rights of the Constitution for which the flag represented (in this way praising the flag). Seemingly with an understanding/sympathy for the sentiments of the state, though a determination to uphold the values of the Constitution, the Court said, “We have not recognized an exception to this principle even when our flag has been involved… In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it… the point of our prior decisions; their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependant on the particular mode in which one chooses to express and idea.” It was also said that government should have no role in deciding what forms or symbols one may express himself in as this would be adding an abstract and subjective interest when it comes to law and regulation. The First Amendment and the Constitution itself was designed to prevent this kind dangerous control. Similarly, it was concluded that, “There is, no indication…that a separate juridical category exists for the American flag alone.” In this way, the flag is no exception to he First Amendment and is a valid medium of expression under law. To conclude the case with a philosophical tone, upon the absolution of Johnson’s charges by the State it was said, “We are tempted to say… that the flag’s deservedly cherished place in our community will be strengthened… by our holding today. Our decision is the reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength.” To finally authenticate the Court’s decision, it was said, “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

Several justices dissented to the ruling on the basis that the flag does indeed mandate special protection because of the intensely representative and associative elements such a symbol has. It was almost as if destruction to such an item was a direct attack against the freedoms and liberties, or the very essence of this nation. However, in regarding the case on a “personal level” the justices (Rehnquist and O’Connor) seems to act out of anger towards the conduct of Johnson and relate such a reaction to the reaction the majority of people would have to such an act. It was said, “Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people…” The flip side to protecting the interest of many, at least in democracy, is to be consistent and true in saying that it is just as much governments duty to protect the legally valid interests of the minority and make sure they receive the same protection and freedoms under the Constitution as the majority.

The trend among all of these cases regarding the extent to which the First Amendment applies to expression, what constitutes expression whether symbolic or concrete, and by what means can the government regulate such rights has shown the subjectivity and variance in opinion and response when it comes to interpreting law. Oddly enough, it seems that often judicial decisions must be made largely on precedence, morality, and a general understanding of the sentiment behind a law or Amendment when resolving issues that seem to only gain in complexity and abstraction. Though the Supreme Court Justices often address yet avoid far reaching philosophical enigmas, the trend in precedence begins to really tug at the fundamental beliefs of America and the rights, particularly of the First Amendment, on which it was outlined though many of the specific arguments may be of a nature in which a definitive, unbiased, and consistent decision is not sufficient or attainable (from person to person, item to item, or one behavior to another). Such is the reality when dealing with the First Amendment and the iffy nature of free speech and expression in a democracy.