Flag Burning and Free Speech: The Great 1989–1990 American Flag Desecration Controversy

In a free society where it often seems nothing is sacred, many feel that one thing at least should be: that despite constitutional guarantees of free speech, it should be illegal to desecrate the American flag. For most Americans, no symbol is more charged with emotion, and incidents of its abuse have led many to declare that freedom of expression has its limits. When Gregory Lee Johnson burned a flag as part of a political protest, he was convicted for flag desecration under Texas law, but the Texas Court of Criminal Appeals reversed the conviction on First Amendment grounds and the Supreme Court confirmed that physically damaging the flag constituted symbolic—and protected—speech. Robert Justin Goldstein now examines this landmark case and the attendant controversy over whether protection of the flag conflicts with constitutional guarantees of free speech. He also explores the case’s ramifications for future legal battles. Goldstein, who has published widely on the flag desecration debate, offers a concise and updated account of the controversy for students and general readers. He traces the history of the flag protection movement from its nineteenth-century origins through the enactment of early state laws, and he examines modern incidents of flag desecration from the Vietnam era to the present. At the heart of the book is the Johnson case and the political firestorm that it ignited. Goldstein examines the legal and philosophical issues surrounding the case through courtroom testimony, oral arguments, and interviews with Johnson, the lawyers (including former Whitewater prosecutor Kenneth Starr and the late famed “radical attorney” William Kunstler), and the judges who heard the many rounds of appeals. He then takes us inside the Supreme Court to analyze the justices’ reasoning that government may not prohibit the expression of an idea simply because society finds it offensive. Finally, he looks at reactions to the decision—including recent heated attempts to protect the flag through legislation or constitutional amendment. Goldstein helps us better understand the human emotion and psychological drama that underlie abstract legal and constitutional issues and that fundamental rights sometimes are held by the courts to be superior to majority rule or popular emotion. By demonstrating how competing and often contradictory concepts can be embodied in the very same symbol, he helps us understand the fundamental meanings of democracy and patriotism. In a free society where it often seems nothing is sacred, many feel that one thing at least should be: the American flag. For most Americans, no symbol is more charged with emotion, and incidents of its abuse have led many to declare that freedom of expression has its limits.

When Gregory Lee Johnson burned a flag as part of a political protest, he was convicted for flag desecration under Texas law, but the Texas Court of Criminal Appeals reversed the conviction on First Amendment grounds and the Supreme Court confirmed that physically damaging the flag constituted symbolic—and protected—speech. Robert Justin Goldstein now examines this landmark case and the attendant controversy over whether protection of the flag conflicts with constitutional guarantees of free speech. He also explores the case's ramifications for future legal battles.

Goldstein, who has published widely on the flag desecration debate, offers a concise and updated account of the controversy for students and general readers. He traces the history of the flag protection movement from its nineteenth-century origins through the enactment of early state laws, and he examines modern incidents of flag desecration from the Vietnam era to the present.

At the heart of the book is the Johnson case and the political firestorm that it ignited. Goldstein examines the legal and philosophical issues surrounding the case through courtroom testimony, oral arguments, and interviews with Johnson, the lawyers (including former Whitewater prosecutor Kenneth Starr and the late famed "radical attorney" William Kunstler), and the judges who heard the many rounds of appeals. He then takes us inside the Supreme Court to analyze the justices' reasoning that government may not prohibit the expression of an idea simply because society finds it offensive. Finally, he looks at reactions to the decision—including recent heated attempts to protect the flag through legislation or constitutional amendment.

Goldstein helps us better understand the human emotion and psychological drama that underlie abstract legal and constitutional issues and that fundamental rights sometimes are held by the courts to be superior to majority rule or popular emotion. By demonstrating how competing and often contradictory concepts can be embodied in the very same symbol, he helps us understand the fundamental meanings of democracy and patriotism.

This book is part of the Landmark Law Cases and American Society series.

In 1989 A Political Fire Storm Erupted After The United States Supreme Court Declared That Dissidents Had The Constitutional Right Under The First Amendment To Burn The Flag. To Some, Including President George Bush And Many Members Of Congress, The Flag Was A Sacred Symbol Of American Freedoms. They Believed Its Physical Destruction Posed A Serious Threat To The Country And Demanded A Constitutional Amendment To Reverse The Court's Decision. For Those Who Defended The Court's Ruling, Flag Desecration Was A Form Of Constitutionally Protected Free Speech, And Any Attempt To Forbid Such Conduct Was Seen As Creating A Dangerous Precedent. Burning The Flag Brings Together The Disciplines Of Law, Journalism, Political Science, And History To Explain And Place The Development Of The Controversy In Its Full Context. It Is Based On Extensive Research In Legal, Congressional, And Journalistic Sources And On Exclusive Interviews With Nearly 100 Of The Key Players In The Dispute, Among Them Flag Burners, Judges, Lawyers And Lobbyists On Both Sides, Members Of Congress, Congressional Aides, And Journalists. A Timely Addendum Chronicles The Late 1995 Attempts Once Again To Pass A Constitutional Amendment On Flag Desecration, Adding To The Significance Of This Readable Account. Burning The Flag Will Be Of Value To Both An Academic And A General Audience, Particularly To Civil Libertarians, Flag Buffs, And Those Interested In Popular Media, American Politics, Modern American History, And Constitutional Law. The Pre-1984 Origins Of The American Flag Desecration Controvesy -- The Texas Trials Of Gregory Lee Johnson, 1984-1988 -- The Flag Controversy Moves To Center Stage, August 1988-june 1989 -- The Immediate Post-johnson Flag Firestorm -- The 1989 Congressional Flag Desecration Debate: To Overturn Johnson By Law Or By Constitutional Amendment -- The 1989 Decline And Fall Of The Constitutional Amendment And The Passage Of The Flag Protection Act -- The Flag Protection Act And The Federal District Courts, October 1989-february 1990 -- The Supreme Court And Flag Burning, Round Two, March-june 1990 -- Flag Burning: The Sequel, June 1990 -- Epilogue And Afterthoughts: The Flag Desecration Controversy In The Post-eichman Era, Mid-1990 To Mid-1995 -- Addendum: The Revided Struggle Over The Flag Desecration Amendement In 1995. Robert Justin Goldstein. Includes Bibliographical References (p. [417]-442) And Index. In 1989, the Supreme Court ruled that dissidents had a constitutional right under the First Amendment to burn the flag. During the Bush Administration, Congress passed the Flag Protection Act (FPA), and so doing reflected the broad spectrum of opinion that saw the flag as a sacred symbol of American freedoms. Robert Justin Goldsteins Burning the Flag thoughtfully draws on the disciplines of law, political science and history to analyze the controversy in all its dimensions. London Review of BooksGoldstein has written a wonderfully comprehensive and highly readable history and analysis of the flag desecration debate in the US.Choice When Gregory Lee Johnson burned a flag, he was convicted for flag desecration under Texas law, but the Court of Appeals reversed the conviction. This work examines the case and the attendant controversy over whether protection of the flag conflicts with constitutional guarantees of free speech. In 1989, a political fire storm erupted after the United States Supreme Court declared that dissidents had the constitutional right under the First Amendment to burn the flag. This work, based on research in legal, congressional and journalistic sources, discusses this controversy.