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Texas V. Johnson: the Constitutional Protection of Flag Desecration

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Texas V. Johnson: the Constitutional Protection of Flag Desecration Pepperdine Law Review Volume 17 Issue 3 Article 6 4-15-1990 Texas v. Johnson: The Constitutional Protection of Flag Desecration Patricia Lofton Follow this and additional works at: https://digitalcommons.pepperdine.edu/plr Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, First Amendment Commons, Jurisprudence Commons, and the Law and Society Commons Recommended Citation Patricia Lofton Texas v. Johnson: The Constitutional Protection of Flag Desecration, 17 Pepp. L. Rev. Iss. 3 (1990) Available at: https://digitalcommons.pepperdine.edu/plr/vol17/iss3/6 This Note is brought to you for free and open access by the Caruso School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Law Review by an authorized editor of Pepperdine Digital Commons. For more information, please contact [email protected], [email protected], [email protected]. Texas v. Johnson: The Constitutional Protection of Flag Desecration I. INTRODUCTION On August 22, 1984, an American flag was flying in front of the Mercantile Bank building in Dallas, Texas. While Dallas was hosting the Republican National Convention, Gregory Lee Johnson and fel- low protesters were marching through the streets to challenge the policies of the Reagan Administration.1 Along the way, they spray painted buildings and staged "die-in's" to demonstrate the effect of a nuclear explosion.2 When the protestors arrived at the Mercantile Bank building, they bent down the flagpole and one of them removed the American flag from its pole and handed it to Johnson.3 The march continued to the Dallas City Hall where Johnson burned the flag while the protesters chanted "America, the -red, white, and blue, we. spit on you."4 The police arrived about thirty minutes later. Johnson was arrested, charged, and eventually convicted5 of violating the Texas flag desecration statute.6 Daniel Walker, an employee of the Army Corps of Engineers, was in the crowd that day and wit- nessed the flag's burning. Walker gathered up the charred remains 7 of the flag and quietly buried them in his backyard. Johnson and Walker symbolically represent the competing inter- ests in Texas v. Johnson.8 Johnson, supported by his attorney, Wil- liam M. Kunstler, and the American Civil Liberties Union as amicus curiae, represents the first amendment right of an individual to ex- press his political beliefs.9 Walker, by his silent reverence for the flag, symbolizes the position advocated by the State of Texasl0 and 1. Texas v. Johnson, 109 S. Ct. 2533, 2536 (1989); Brief for the State of Texas at 5- 6, Texas v. Johnson, 109 S. Ct. 2533 (1989) (No. 88-155). 2. Brief for the State of Texas at 7, Johnson (No. 88-155). 3. Id. at 8. 4. Johnson, 109 S.Ct. at 2536. 5. Id, at 2537. 6. See TEX. PENAL CODE ANN. § 42.09(a)(3) (Vernon 1989). For the text of this statute, see infra note 141. 7. Johnson v. State, 755 S.W.2d 92, 94 (Tex. Crim. App. 1988); Brief for the State of Texas at 11, Johnson (No. 88-155). 8. 109 S. Ct. 2533 (1989); see inkfra notes 59-61 and accompanying text. 9. See infra notes 38-97 and accompanying text. 10. See inifra note 150 and accompanying text. the minority opinion of the United States Supreme Court.11 They be- lieve that preserving the American flag as a symbol of nationhood and national unity is a more compelling interest than an individual's first amendment right to burn the flag in political protest.12 Ultimately, Johnson and the first amendment won the day.13 How- ever, the Supreme Court was sharply divided in its five-to-four deci- sion, highlighted by an apologetic explanation in a concurring opinion by Justice Kennedy.14 Case law precedent indicated the clear path to the Court's decision,15 and the Court's first amendment analysis brought no surprises. 16 However, Texas v. Johnson is unique because of the compelling nature of the state's interest. Rarely has an issue so deeply touched the hearts of the American people who, like Jus- tice Kennedy, are torn between the love of their country and their desire for fundamental human rights. This note is divided into five parts. Part I traces the history of the flag desecration statutes.17 Part II explores the first amendment and the modern decisions establishing the strict standard of review em- ployed by the majority in Johnson.18 Part III then provides a com- plete analysis of Johnson.19 The impact of the decision is discussed in Part IV, with particular focus on the congressional and presidential responses. 20 A brief conclusion and epilogue comprise Part V.21 II. FLAG DESECRATION: STATUTES AND CASE LAW A. Early Statutes and Cases: 1890-1918 Although flag desecration statutes have been in existence since 1898,22 their association with first amendment issues is a modern phe- 11. See infra notes 190-229 and accompanying text. 12. See Johnson, 109 S. Ct. at 2548 (Rehnquist, C.J., dissenting); see also infra notes 150, 192, 216-23 and accompanying text. 13. Johnson, 109 S. Ct at 2548; see infra note 146. 14. Johnson, 109 S. Ct. at 2548 (Kennedy, J., concurring); see inkfra notes 187-89 and accompanying text. 15. See infra notes 98-138 and accompanying text. 16. G. Stone, Statement before the United States Senate Committee on the Judici- ary Hearings on the United States Supreme Court Decision in Texas v. Johnson 1 (Aug. 1, 1989). Stone, a Harry Kalven, Jr., Professor of Law and Dean of the Univer- sity of Chicago Law School, testified to the Senate Committee that the decision in Johnson held no surprises because it was based on constitutional doctrines that had been established over the last century. Id. 17. See irfra notes 22-48 and accompanying text. 18. See infra notes 49-138 and accompanying text. 19. See infra notes 139-228 and accompanying text. 20. See infra notes 229-96 and accompanying text. 21. See infra notes 297-305 and accompanying text. 22. By 1906, more than half the states had enacted flag abuse statutes: Ariz., Rev. Stat. 1901, p. 1295; Colo. 3 Mills Anno. Stat., vol. 3, Rev. Supp., 1891-1905, p. 542; Conn., Gen. Stat., 1902, p. 387; Cal. Stat., 1899, p. 46; Del., 22 Sess. Laws, p. 982; Hawaii, Sess. Laws, 1905, -p. 20; Idaho, Sess. Laws, 1905, p. [Vol. 17: 757, 1990] Texas v. Johnson PEPPERDINE LAW REVIEW nomenon. 23 It took nearly three-quarters of a century for political protesters to realize that the flag was a powerful means of expres- sion, and just as long for notions of first amendment protection to ex- pand enough to encompass such acts. Early cases primarily involved improper commercial use of flags in advertising and trademarks. 24 In Halter v. Nebraska,25 a 1906 landmark case, the United States Supreme Court upheld the convic- tion of a businessman accused of selling whiskey bottles with labels displaying the American flag.26 The Court ruled that an individual cannot acquire property rights in the American flag,27 and that the use of the flag for commercial purposes "tends to degrade and cheapen the flag in the estimation of the people, as well as to defeat the object of maintaining it as an emblem of National power and Na- tional Honor." 28 After a few proceedings,29 flags were no longer seen on commercial items, and flag misuse cases were not prevalent.30 B. Statutes and Cases During World War I With the fervor of patriotism accompanying World War I came the next wave of flag statutes. Federal statutes made it a crime to cast contempt, either by words or act, upon the United States flag.3 ' 328; Ill., Sess. Laws, 1899, p. 234; Ind., Acts, 1901, p. 351; Kans., Gen. Stat., 1905, p. 499, § 2442; Me., R.S., 1903, p. 911; Md., Laws, 1902, p. 720; Mass., 2 Rev. Laws, 1902, p. 1742; Mich., Pub. Acts, 1901, p. 139; Minn., Rev. Laws, 1905, § 5180; Mo., 2 Anno. Stat., 1906, § 2352; Mont., Laws, 1905, p. 143; N.H., Pub. Stat., 1901, p. 810; N.J., Laws, 1904, p. 34; New Mex., Laws, 1903, p. 121; N.Y., Laws, 1905, vol. 1, p. 973; N. Dak., Laws, 1901, p. 103; R.I., Sess. Acts, Jan. & Dec., 1902, p. 65; Utah, Laws, 1903, p. 29; Vt. Laws, 1898, p. 93; Washington, Session Laws, 1901, p. 321; Wis., Laws, 1901, p. 173; Wyo., Laws, 1905, p. 86. Halter v. Nebraska, 205 U.S. 34, 39 n.1 (1906). 23. See Rosenblatt, Flag Desecration Statutes: History and Analysis, 93 WASH. U.L.Q. 193, 201-02 (1972) (no mention of first amendment rights were made for many years). 24. See, e.g., Ruhstrat v. People, 185 Ill. 133, 57 N.E. 41 (1900). Ruhstrat was found guilty of displaying the national flag on a cigar box in violation of the Illinois flag stat- ute. On appeal, the statute was held unconstitutional on the basis of the equal protec- tion and due process clauses. Id. at 147-48, 57 N.E. at 46. 25. 205 U.S. 34 (1906). 26. Id. 27. Id. at 42-43. 28. Id. at 42. 29. See, e.g., Halter v. Nebraska, 205 U.S. 34 (1906); Ruhstrat v. People, 185 Ill. 133, 57 N.E. 41 (1900); People ex rel. McPike v. Van DeCarr, 178 N.Y. 618, 70 N.E. 965 (1904). 30. Rosenblatt, supra note 23, at 205. 31. UNIFORM FLAG ACT OF 1917 § 3. The Act provides: "No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign or shield." PROCEEDINGS OF NATIONAL CONFERENCE While earlier cases were based on flag degradation through advertis- ing, the World War I cases expanded the notion of degradation to in- clude contemptuous language.32 In Ex Parte Starr,33 the defendant was sentenced to ten to twenty years of hard labor for saying, "What is this thing anyway? Nothing but a piece of cotton with a little paint on it and some other marks in the corner there.
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