Retrospective: Texas v. Johnson (“Burn, Baby, Burn”)

ABURNLiberals are today’s enemies of the First Amendment, but it wasn’t always so. Back when I was growing up in the ’80s, conservatives were the problem. To get a sense of how liberals were back then, contrast the way 10,000 Maniacs lead-singer Natalie Merchant told Cat Stevens to fuck off when he censured Salman Rushdie for lambasting Islam in The Satanic Verses. Today she would be called an Islamophobe, but she was so disgusted that her band removed their cover of Cat Stevens’ “Peace Train” from all future copies of their album. She disowned Stevens for his censuring of Rushdie — and good for her. That’s the kind of disdain liberals used to have for enemies of free expression. Not today. Today the Cat Stevenses are heroes, and the Natalie Merchants a dying breed. Look at the way Katy Perry responded when Muslims petitioned her to remove the image of an Allah pendant from one of her music videos. She caved in right away out of “respect”. Natalie Merchant, where art thou?

Liberals were proper heroes when I was growing up in the ’80s, and nothing brought this home more strongly that the Supreme Court case of Texas v. Johnson. It was the landmark decision which preserved our right to burn the American flag. The decision was 5-4 upholding the First Amendment, but it was surprising it didn’t go the other way. There were only three liberal “Natalie Merchants” on the court — William Brennan, Thurgood Marshall, Harry Blackmun — alongside the possibility of Anthony Kennedy as a swing vote. That’s only four. No one could have predicted that Antonin Scalia, the arch-conservative of the court, would come down squarely on the side of those who desecrate the American flag. Not only did he join the liberals, he did so unreservedly, unlike Kennedy who supported them reluctantly in a separate concurrence.

My retrospective of Texas v. Johnson is two things. First a reminder of the importance of our First Amendment. It wasn’t designed to protect what we want to hear. Those things don’t need protection. It exists precisely to protect what offends us. Offense is the whole point of free expression. The liberal Supreme Court underdogs of the ’80s, like Natalie Merchant, got this. Second, this retrospective honors Antonin Scalia, who died last weekend. He was anything but a liberal, and there is much about him I despised. But he was on the right page when our fundamental liberties were at stake. We owe him a debt of gratitude for allying with the leftists in Texas v. Johnson. Unlike his conservative colleagues, he took the First Amendment seriously and for granted. If not for this so-called “fascist” — if Reagan had appointed any other justice in his place — we would probably not have the right today to burn the American flag.

Here’s the fourfold breakdown among the nine justices (reached in June 1989), followed by the transcript of oral arguments that led to this divisiveness. In the transcript, I put all of Scalia’s statements in bold.

The majority opinion (4): “Burn, baby, burn.” William Brennan, Thurgood Marshall, Harry Blackmun, Antonin Scalia. According to these justices — the three liberals and the arch-conservative — flag-burning is expressive conduct which is clearly protected by the First Amendment. Acknowledging that “the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word,” it may not “proscribe particular conduct because it has expressive elements.” It was a straightforward decision, and Scalia was one of the most aggressive in defending it.

The reserved concurrence (1): “Offensive people must be defended.” Anthony Kennedy. He supported the four justices, but with a separate explanation expressing clear contempt for those who burn the flag. “The hard fact,” he wrote, “is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result. The flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.” Unlike Kennedy, Scalia didn’t distance himself like this from the liberals.

The dissent (3): “The flag is too sacred.” William Rehnquist, Sandra O’Connor, Byron White. According to the chief justice and two others, the American flag has a “unique status” that justifies a law against burning it. Because millions of Americans regard it “with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have,” the First Amendment does not apply. Some things are too sacred.

The obscurantist dissent (1): “Punish the conduct, not the opinions.” John Stevens. All too aware of how lame Rehnquist’s argument was, Stevens wrote a separate dissent. (He was a liberal with confused and inconsistent ideas about free speech: he could never decide how he really felt about obscenity laws, and as a patriotic World-War II veteran he was personally angered by flag-burning.) Like Rehnquist, he invoked the flag’s mythic status: the flag is so important, he wrote, that “its value as a symbol cannot even be measured”. But he turned the offense on conduct rather than opinions (which, against Rehnquist, the First Amendment must surely protect).  The case against flag-burners, wrote Stevens, “has nothing to do with disagreeable ideas. It involves disagreeable conduct that diminishes the value of an important national asset”. Flag-burners are breaking the law for the way they express their opinion, not the opinion itself. That’s a bewildering argument, but it does show the lengths people will go to obscure what they’re really objecting to — free expression that simply “goes too far” against one’s sacred cow.

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Transcript of Texas v. Johnson, Oral Arguments, Tuesday, March 21, 1989
Kathi Drew, Dallas County Assistant District Attorney
William Kunstler, New York Defense Attorney for Gregory Johnson

CHIEF JUSTICE WILLIAM REHNQUIST: Ms. Drew, you may proceed whenever you’re ready.

KATHI DREW: Thank you, Mr. Chief Justice, and may it please the Court: The issue before this Court is whether the public burning of an American flag which occurred as part of a demonstration with political overtones is entitled to First Amendment protection. The flag was burning in front of Dallas City Hall at the culmination of a demonstration march through downtown Dallas in the midst of a crowd of demonstrators and on lookers. The flag burner, who was identified as Mr. Johnson, was convicted under a Texas statute which prohibits desecration of the national flag. His punishment was assessed at one year in the county jail plus a $2,000 fine. The conviction was affirmed on direct appeal by the Intermediate Court of Appeals. Mr. Johnson then filed petition for discretionary review to the Texas Court of Criminal Appeals. That is the highest court in the state of Texas which hears criminal cases. The court granted his petition, reversed his conviction, and ordered the information dismissed.

The Court of Criminal Appeals held that the Texas statute was unconstitutional as applied to Mr. Johnson, since he was a political protester. Judge Campbell of that court found that flag burning constituted symbolic speech within the test enunciated by this court in Spence versus Washington. That court also found that Texas’ asserted interests in regulating the act of flag burning were insufficient to outweigh a protestor’s First Amendment rights to expression. For purposes of this argument today and with the Court’s indulgence, the state will assume the symbolic speech standard and proceed directly to the question of Texas’ compelling interest in regulating this type of conduct. Throughout the course of the appellate history in this case Texas has advanced two compelling state interests. One is the preservation of the flag as a symbol of nationhood and national unity. The second is the preservation of a breach of the peace.

CHIEF JUSTICE REHNQUIST: Prevention of breach of the peace?

KATHI DREW: Yes, Your Honor, prevention as opposed to punishment for a breach of the peace. I would like to address first the nationhood interest. We believe that preservation of the flag as a symbol of nationhood and national unity is a compelling and valid state interest. We feel very certain that Congress has the power to both adopt a national symbol and to take steps to prevent the destruction of that symbol, to protect the symbol.

JUSTICE ANTONIN SCALIA: Now, why did the defendant’s actions here destroy the symbol? His actions would have been useless unless the flag was a very good symbol for what he intended to show contempt for. His action does not make it any less a symbol.

KATHI DREW: Your Honor, we believe that if a symbol over a period of time is ignored or abused that it can, in fact, lose its symbolic effect.

JUSTICE SCALIA: I think not at all. I think when somebody does that to the flag, the flag becomes even more a symbol of the country. I mean, it seems to me you’re running quite a different argument, not that he’s destroying its symbolic character, but that he is showing disrespect for it, that you not just want a symbol, but you want a venerated symbol, and you don’t make that argument because then you’re getting into a sort of content preference. But I don’t see how you can argue that he’s making it any less of a symbol than it was.

KATHI DREW: Your Honor, I’m forced to disagree with you. Because I believe that every desecration of the flag carried out in the manner that he did here — and certainly I don’t think there can be any question that Mr. Johnson is a hard-core violator of this statute — if his actions in this case under the facts of this case do not constitute flag desecration, then I really am not quite certain what would constitute flag desecration.

JUSTICE SCALIA: They desecrate the flag indeed, but do they destroy the symbol? Do they make it any less symbolic of the country? That’s the argument I thought you were running — that we have a right to have a national symbol. And if you let the people desecrate the flag, you don’t have a national symbol. I don’t see how that follows. We may not have a respected national symbol, but that’s a different argument. Now, if you want to run that argument that we have the right to insist upon respect for the flag, that’s a different argument.

KATHI DREW: Texas is not suggesting that we can insist on respect. We are suggesting that we have the right to preserve the physical integrity of the flag so that it may serve as a symbol because its symbolic effect is diluted by certain flagrant public acts of flag desecration.

CHIEF JUSTICE REHNQUIST: Well, in the sense you’re arguing a minimal form of respect for the flag, aren’t you? Not that you have to take your hat off or salute when it goes by. Now, the state can’t require you, but at least can it consist that you not destroy it?

KATHI DREW: Yes, Your Honor. To the extent that we are asking for any respect for the flag, we are asking for respect for its physical integrity. Certainly we do not demand that any individual view it with any discernable emotion whatsoever, only that its physical integrity be respected. And I think that that is a very minimal basis to ask from any individual. And that is really all Texas is suggesting with this is that we have got to preserve the symbol by preserving the flag itself because there really is no other way to do it. There is nothing that would accomplish this particular purpose if you cannot protect the physical integrity of the flag.

JUSTICE ANTHONY KENNEDY: Well, over the years, over the centuries, the cross has been respected. I recognize one’s a religious symbol, the other’s a national one, but there’s no legislation that has appeared necessary to protect, say, the cross.

KATHI DREW: That’s true, Your Honor.

JUSTICE KENNEDY: So, it may be that you can protect symbols by public respect and by measures other than the imposition of the criminal law.

KATHI DREW: Your Honor, I don’t believe, though, that a cross has quite the same character that the American flag does because there are many crosses as probably people in this nation who would not view a a symbol. And this particular statute, Your Honor, would not go to that sort of a symbol. This particular statute, I believe, in this respect recognizes that the flag is a national property, that it belongs to all people, that all people are entitled to view it symbolically in whatever way that they wish. Some people may give it great respect. Others may not. That’s not what we’re regulating here. We are simply trying to preserve the flag as a symbol for all people. The issue–

JUSTICE KENNEDY: Well, you begin by saying that it’s a symbol and by acknowledging, at least in this part of your argument, that what the defendant did was speech, is that correct?

KATHI DREW: We are assuming that standard for purposes today.

JUSTICE KENNEDY: All right. At this point, what is the juridical category you’re asking us to adopt in order to say we can punish this kind of speech? Just an exception for flags? It’s just a flag exception of the First Amendment?

KATHI DREW: To a certain extent, we have made that argument in our brief. With respect to the symbolic speech standard, we believe that there are compelling state interests that will in a balancing posture override this individual’s symbolic speech rights, and that preserving the flag as a symbol, because it is such a national property, is one of those.

JUSTICE KENNEDY: What are the others?

KATHI DREW: The other state interest advanced Your Honor, is a prevention of a breach of the peacce.

JUSTICE KENNEDY: That’s the other state interest.

KATHI DREW: Yes, Your Honor.

JUSTICE KENNEDY: But I assume under this statute, of course, it’s not just one flag, it’s 51.

KATHI DREW: 51 flags or all 50 state flags but the national flag? I’m confused by your question. I apologize.

JUSTICE KENNEDY: Well, this statute prohibits the desecration of a state flag as well.

KATHI DREW: Yes, it does.

JUSTICE KENNEDY: Of the Texas state flag?

KATHI DREW: Yes.

JUSTICE KENNEDY: And I assume if we upheld the statute in every other state it would have the same right?

KATHI DREW: Yes, Your Honor.

JUSTICE KENNEDY: So, your category for one flag is now expanded to 51.

KATHI DREW: The statute does say a national flag. That is correct. And we do believe Texas certainly has to protect its own flag. And I think that a similar interest would be for sister states. So, the statute says a state or national flag.

JUSTICE SANDRA DAY O’CONNOR: Could Texas prohibit the burning of copies of the Constitution, state or federal?

KATHI DREW: Not to my knowledge, Your Honor.

JUSTICE O’CONNOR: That wouldn’t be the same interest in the symbolism of that?

KATHI DREW: No, Your Honor, it would not be the same interest I don’t believe.

JUSTICE SCALIA: Why not? Why is that? I was going to ask about the state flower. [Laughter]

KATHI DREW: There is legislation, Your Honor, which does establish the blue bonnet as the state flower.

JUSTICE SCALIA: I thought so.

KATHI DREW: It does not seek to protect it.

JUSTICE SCALIA: Well, how do you pick out what to protect? I mean, if I had to pick between the Constitution and the flag, I might well go with the Constitution. I don’t know.

KATHI DREW: Your Honor, I think Texas in this area has made a judgment that certain items, and the statute itself is not limited to just the flag. The portion that is in question here is limited to the flag. But it has made a judgment that certain items are entitled to more protection.

JUSTICE SCALIA: I understand that. But we up to now have never allowed such an item to be declared a national symbol and to be usable symbolically only in one direction, which is essentially what you’re arguing. You can honor it all you like, but you can’t dishonor it as a sign of disrespect for the country.

KATHI DREW: No, Your Honor. We’re not arguing that at all.

JUSTICE SCALIA: Oh?

KATHI DREW: Not at all. We are in no way arguing that one cannot dishonor the flag or that one cannot demonstrate disrespect for the flag. Individuals have that right. What we are arguing is that you may not publicly desecrate a flag regardless of the motivation for your action.

JUSTICE SCALIA: Well, one hardly desecrates it in order to honor it. I mean, you only desecrate it in order to show your disagreement with what it stands for, isn’t that right? So, it is sort of a one-way statute.

KATHI DREW: I don’t think that it is exactly, Your Honor, because I think that there are other forms of conduct which are… equally prohibit… well, let me put it this way. The same conduct is prohibited, regardless of the motive of the actor. If this–

JUSTICE SCALIA: But his motive will never be to honor the country. It will always be to criticize the country.

KATHI DREW: Not necessarily.

JUSTICE SCALIA: Will you give me an example where somebody desecrates the flag in order to show that he agrees with the policies of the United States? [Laughter]

KATHI DREW: I think it is possible…

JUSTICE SCALIA: Well?

KATHI DREW: An individual could choose to burn a flag as an honor for all the individuals who died in Vietnam. This is their most prized possession. They’re going to take it in front of Dallas City Hall in the midst of a hundred people in the middle of the afternoon, they’re going to soak it with lighter fluid, and they’re going to ignite it, and they are doing this to honor the Americans who died in Vietnam.

JUSTICE JOHN PAUL STEVENS: They’ll probably violate a federal statute while they’re doing that, too.

KATHI DREW: Yes, Your Honor, there is a federal statute that does regulate flag desecration. This man was not prosecuted under it. He was prosecuted under the Texas statute.

JUSTICE SCALIA: Your statute would cover that example that you just gave?

KATHI DREW: Yes, it would, Your Honor, because it does not go to the motive of the actor. If a vandal takes a flag — same scenario — in front of Dallas City Hall, a hundred people, middle of the afternoon, soaks it with lighter fluid, sets it on fire, they are still liable under this statute. They have desecrated the flag, but they have no intent to dishonor the country. They have no intent to dishonor the flag.

JUSTICE O’CONNOR: Well, actually, Ms. Drew…

KATHI DREW: Yes.

JUSTICE O’CONNOR: I thought this statute only applied if the desecration were done in a way that the actor knows will offend one or more other people likely to discover it.

KATHI DREW: That is correct, Your Honor.

JUSTICE O’CONNOR: There is that little added requirement, is there not?

KATHI DREW: Yes, Your Honor, that is correct.

JUSTICE O’CONNOR: And do you think that that added requirement survives analysis under this court’s cases in Street and Grayned versus City of Rockford and so forth?

KATHI DREW: Yes, Your Honor, I believe it does.

JUSTICE O’CONNOR: And why?

KATHI DREW: Because I believe the import of that statute. Now, the statutory language there is that it goes to the manner in which the act is effectuated. It goes to the way in which the act is performed, that it has to be in a way that the actor knows will seriously offend. Serious offense does not have to be caused under this statute.

JUSTICE O’CONNOR: Well, I thought that the court had held that it’s firmly settled under the Constitution, that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the hearers.

KATHI DREW: That’s correct, Your Honor.

JUSTICE O’CONNOR: And this statute seems to try to achieve exactly that.

KATHI DREW: I don’t believe that it does, Your Honor, because I believe that the pivotal point is in a way how the conduct is effectuated, how is it done, not what an individual may be trying to say, not how onlookers perceive the action, not how the crowd reacts, but how is it done. If you take your flag into your basement in the dead of night, soak it with lighter fluid and ignite it, you probably have not violated this statute, because the Texas statute is restricted to certain limited forms of flag desecration.

JUSTICE HARRY A. BLACKMUN: Ms. Drew, it’s probably of no consequence, but is there anything in the record as to whether this flag was stolen?

KATHI DREW: Yes, Your Honor, as a matter of fact there is. One of the officers who was observing the march testified that in front of the Mercantile Bank Building he saw several of the protesters bend a flag pole and remove an American flag. They then handed this flag to Mr. Johnson, who wadded it up and stuck it under his T-shirt. The march then proceeded. The officer testified that when they got to City Hall, he saw Mr. Johnson remove the flag from under his shirt. He tried to light it with a cigarette lighter. It would not light. Someone from the crowd then handed him the can of lighter fluid. He soaked it, ignited it, the flag burned.

JUSTICE BLACKMUN: But you would be making the same argument if he owned the flag?

KATHI DREW: Yes, Your Honor, we would be. I do not believe that there is a shred of evidence in this record to support the fact that this was his privately owned flag. I believe just the opposite is very clearly reflected.

JUSTICE STEVENS: Was he prosecuted for stealing the flag?

KATHI DREW: No, Your Honor, he was not.

JUSTICE STEVENS: I wonder why.

KATHI DREW: I believe, Your Honor, problems were of proof there in that no one that saw him actually take it. In fact, the testimony was that others it and then gave it to him. And I believe that it was felt that there so many proof problems that a prosecution was speculative under those facts. There also might have been some problem placing a monetary value on the flag for with purposes of prosecution, which is necessary under the statute.

JUSTICE BLACKMUN: Isn’t the real way of opposing this kind of action by this man to have a large crowd out waving other flags in opposition to his posture rather than putting him in jail?

KATHI DREW: I’m sorry, Your Honor. I’m not… I’m I didn’t get all of your question.

JUSTICE BLACKMUN: Well, if you were out in front of the building today, there are pseudo-demonstrators of one kind or another, and I’m merely saying that wouldn’t it be better policy to rather than have a criminal statute like this to have 500 people out waving flags and hooting him down, so to speak?

KATHI DREW: Your Honor, I believe that legislatures act in category equal manners, and that–

JUSTICE BLACKMUN: Legislatures act the way they do, all right, no question. You have to be up here defending them.

KATHI DREW: It is within their judgment to penalize behavior that they feel is offensive to society.

JUSTICE KENNEDY: But you gave that answer before. You said the legislature has made the judgment. But you’re asking us to define and to articulate a constitutional category. And from what I can see, the constitutional category is that we simply say the flag is different.

KATHI DREW: That is one possibility that we have advanced to this court. That’s certainly true, Your Honor. We have also suggested, though, that another route is available to assume the symbolic speech standard and to take a look at what the state’s interests are in protecting and in prescribing this type of behavior.

JUSTICE O’CONNOR: Do you suppose Patrick Henry and any of the founding fathers over showed disrespect to the Union Jack?

KATHI DREW: Quite possibly, Your Honor.

JUSTICE SCALIA: You think they had in mind then in drafting the First Amendment that it should be a prosecutable offense?

KATHI DREW: Of course, Your Honor, one has no way of knowing whether it would be or not.

JUSTICE SCALIA: I think your response is that they were willing to go to jail, just as they were when they signed the declaration. They were hoping they wouldn’t get caught. [Laughter]

KATHI DREW: Yes, Your Honor. I believe the classic line is “We hang together or separately”.

JUSTICE STEVENS: You said that this flag may be possibly different from other symbols. You don’t argue that there’s something unique about this flag?

KATHI DREW: Of course there is, Your Honor.

JUSTICE STEVENS: Do you think you have an equally strong case for the flag of the State of Texas or the state flower? Do you think they’re the same case?

JUSTICE SCALIA: Well, Texas may be, we’ll say. [Laughter]

KATHI DREW: Texas, absolutely, Your Honor. [Laughter]

JUSTICE STEVENS: Are you serious in that answer?

KATHI DREW: Yes, I am.

JUSTICE  STEVENS: That the Texas flower… you could make the same kind of argument as for this flag?

KATHI DREW: No, I don’t think you could make the same kind of argument for the Texas flower. I truly do not.

JUSTICE STEVENS: But you haven’t really made an argument that there’s anything unique about this symbol.

KATHI DREW: Well, Your Honor, I disagree. I think in our brief we have detailed several arguments of what is unique about the symbol. I think it’s very clear that the flag is the manifestation, the visible manifestation of over 200 years of history in this nation, and that it has remained virtually unchanged in design. The 13 stripes represent the original 13 colonies, and every state is represented on the field of blue by a star. It is very unique. It is immediately recognizable to almost anyone who would see it.

JUSTICE THURGOOD MARSHALL: Well, suppose somebody burns an American flag with 48 stars on it.

KATHI DREW: I believe that is reachable under this statute, Your Honor.

JUSTICE MARSHALL: You believe what?

KATHI ALYCE DREW: I do believe that that could be reached under this statute. That is clearly a past flag. Many people probably still own and display 48-star flags.

JUSTICE MARSHALL: It would be just the same?

KATHI DREW: Yes, Your Honor, I believe that it would be.

JUSTICE SCALIA: But 47 wouldn’t work because there was never a 47-star flag…?

KATHI DREW: That would depend, Your Honor, on–

JUSTICE SCALIA: So, all you have to do is take one star out of the flag, and it’s okay. [Laughter]

KATHI DREW: That would depend, I believe, Your Honor, on how flag is defined. There are certain definitions that are given. Congress itself has defined what it means by the flag of the United States. And, as part and parcel of that definition, there is language that says “The stars and stripes in any number which to an individual who looks at it without deliberation, may be a flag. ” The flag behind you looks to me to be a flag, but I cannot count 50 stars on it.

JUSTICE SCALIA: So you’re saying 47 would be okay.

KATHI DREW: If there were any question, I would think that it would be appropriate for a jury to resolve that question, Your Honor.

I’d like to turn very briefly, if I may, to the breach of the peace interest. We do feel that preventing a breach of the peace is a legitimate state interest. And, indeed, the Texas Court of Criminal Appeals recognized that preventing a breach of the peace is a legitimate state interest. Again, the Texas legislature has made a judgment in this area that public desecration is likely to lead to violence, that it can lead to violence. And I think the record in this case is abundantly clear that it is merely fortuitous, it is our good luck that a breach of the peace did not occur as a result of this particular flag desecration. The appropriate test to be utilized in this area has not been decided by this court. There are two lines of cases. One is that public desecration of a flag is inherently inflammatory. Another is that immanence must be shown. And I believe that this record is very clear that Texas could regulate under either theory. And, again, the goal is a prevention of a breach of the peace, not a punishment for a breach of the peace. And in analyzing this particular statute, the Texas Court of Criminal Appeals utilized a much higher standard than any court has ever used before. They went to an actual breach of the peace and they said well, there was no actual breach of the peace. That’s true. Individuals who were seriously offended by this conduct were not moved to violence. If they were, they exercised restraint. But I don’t believe that that is dispositive of the state’s interest and because its interest is different, the standard is different.And I believe that the Court of Criminal Appeals suggestions in this regard are a bit too narrow; that if you have to show an actual breach of the peace, your purpose in a flag desecration statute is obviated. Some other statute would serve that interest, but not a flag desecration standard because its purpose is prevention.

JUSTICE SCALIA: If that theory alone is enough to support the statute, I suppose you could have such statutes for the Stars of David and crosses and Salman Rushdie’s book — whatever might incite people.

KATHI DREW: Your Honor, again, there are other sections of this statute where other items are protected, specifically public monuments, places of burial and worship. I don’t believe that anyone could suggest that one may paint swastikas on the Alamo in San Antonio. That is desecration of the Alamo. Legislatures made it up–

JUSTICE KENNEDY: But that’s because it’s public property.

KATHI DREW: True.

JUSTICE KENNEDY: And unless you want to say that the flag is somehow public property of us all and ignore traditional distinctions of property, then your example just doesn’t work.

KATHI DREW: Your Honor, I believe that it does. I believe it does. The amici brief filed on behalf of Mr. Johnson in this case by the American Civil Liberties Union confesses that there is no First Amendment interest in protecting desecrations of either public monuments or places of worship or burial because they are… and this is a direct quote from Footnote 7, page 18 of their brief… “Someone else’s cherished property”. I think the flag is this nation’s cherished property, that every individual has a certain interest. The government may maintain a residual interest, but so do the people. And you protect the flag because it is such an important symbol of national unity.

JUSTICE SCALIA: If we say so, it becomes so. But it certainly isn’t self-evident that… I never thought that the flag I owned is your flag. [Laughter]

KATHI DREW: Many justices of this court have held that the flag is a national property. Unless the Court has additional questions, I will close.

CHIEF JUSTICE REHNQUIST: Very well, Ms. Drew.

Mr. Kunstler, you may proceed.

WILLIAM KUNSTLER: Mr. Chief Justice, may it please the Court: Some of the steam has been taken out of me by some of the questions and some of the responses and the concession by the state. But I would like to suggest briefly to state that this particular act that we’re concerned with here, this 42.09(a)(3) of the Texas statute singles out communicative impact for punishment. Now, Ms. Drew has avoided that by now. And virtually the state now apparently concedes that you can write out of a statute what Justice O’Connor referred to, the question of whether the actor knows or means that what he’s doing will seriously offend one or more persons likely to observe or destroy or discover his particular act. That’s out of the statute, apparently, according to the argument because in the reply brief and today she has said essentially what is in the reply brief. Like Gertrude Stein, “A rose is a rose”, they now say “A flag burning is a flag burning. ” And they read out of the statute under which he was convicted and which went to the jury and the charge on the question of seriously offend, that’s all out as far as Ms. Drew is concerned.

But it’s not out as far as this court is concerned. That’s what the conviction was about, that’s what the argument to the jury was about, that’s what the charge was about. They all mention that. That’s what the witnesses, Stover, Tucker, and Walker, testified to, that they were seriously offended. So, this depends on communicative impact for punishment. They’ve conceded it’s pure speech. They raise no question arguendo, even, essentially that it is not speech, and concede that.

JUSTICE SCALIA: Mr. Kunstler, I think you’re stretching her argument. I don’t think she said that. I think she said that there has to be a fence, but it doesn’t have to be the intention to communicate that offense. It doesn’t have to be intended offense.

WILLIAM KUNSTLER: Well, that’s–

JUSTICE SCALIA: If you’re doing it to honor the flag in your crazy, mistaken fashion, but it would obviously offend anyone else, then you would violate the statute. So, I think she still insists that it be likely to offend somebody, but you don’t have to intend to communicate a dishonor or offense to the flag.

WILLIAM KUNSTLER: I can understand that rationale, but in reading the reply brief, it said in essence we virtually take that out of the statute. We rewrite the statute now, and we say essentially a flag burning is a flag burning, and that offense goes out of it, offense whether communicated later or not communicated later, whether it occurs or it doesn’t occur, I thought that’s what the reply brief did. Now, maybe I do misstate her argument slightly, but I don’t think I mistake the reply brief — because I got the impression that “A flag burning is a flag burning. ”

Now, I remember, Justice Scalia, in reading your dissent in Community for Creative Nonviolence that you said essentially, “A law directed at the communicative nature of conduct must like a law directed at speech itself be justified by the substantial showing of need that the First Amendment requires. ” I subscribe to that wholeheartedly. In fact, you went on and you reviewed all of the cases that you thought were applicable there, Stromberg, Brown, Tinker and Spence, and you made the following statement: “Every prescription of expressive conduct in those cases was aimed at the communicative effect of the conduct. ” And that’s what they had here. That’s what the jury got, that’s what the testimony was, and that’s what the statute says.

We subscribe to that in our argument, and I think Justice O’Connor when she wrote Boos she said essentially, this justification is only on the content of the speech and the direct impact that speech has on its listeners. And in Cohen I think Justice White in his concurrence said that statute made the communicative aspect of the proscribed conduct a crucial element of the violation. That’s the contemptuous treatment statute, and that’s what we have here. Everything depends on the communication that is made by the actor which may be communicated to the people on the street. But in the statute, Justice Scalia, it goes even further, “likely to observe or discover”, which could be in the newspapers the next day, for example, as well as being an onlooker.

So, I think that given the concession that the statute is pure speech, given the past decisions of this Court on what should happen to a statute that makes communicative impact, the criterion of the punishment that this statute fails that test, it certainly doesn’t come under O’Brien because here the government’s interest is directly related to expression. I think what you have here is a statute that depends solely and exclusively on communicative impact on the audience, whether they’re there or they read it in the newspaper or they see it on the screen in the evening. It all goes to that. And when you use the word desecrate, you don’t mean really in essence praising the flag. Desecrate has a meaning — to divest of a sacred character or office, to divert from a sacred purpose, to violate the sanctity of, to profane, the opposite of consecrate. Now, with reference to the compelling state interest, I listened to the argument of flower to star against B.J.F. before here, and I don’t want to hurt Mr. Rahdert’s argument in this argument, knowing nothing about the case except what I heard today, but I thought that the protection of a rape victim was a compelling state interest. I agreed with Justice O’Connor’s comments on that. That is a compelling interest, certainly. Here you have no compelling state interest that is worth consideration.

With reference to the nationhood and national unity, which Ms. Drew raised and which is filled in the brief, both the reply brief and the main brief of the state, I thought Barnette set that to rest. I thought that when Justice Jackson said that if there is any fixed star in our Constitutional constellation, it is that no official high or petty can prescribe what shall be orthodox in politics, nationalism–

CHIEF JUSTICE REHNQUIST: Well, the facts of West Virginia v. Barnette were quite different from this. There the students were required to salute the flag.

WILLIAM KUNSTLER: And here, Chief Justice, people are required not to do something.

CHIEF JUSTICE REHNQUIST: Yes.

WILLIAM KUNSTLER: And I think that’s a comparable situation. We order you. We can’t order you to salute the flag. We can’t order you to do all these obeisances with relation to the flag. Can we order you not to do something to show something about the flag?

CHIEF JUSTICE REHNQUIST: Well, to me they’re quite different. You could say that if you can’t do one, you can’t do the other. But it seems to me one could quite easily say you can’t do one but you can do the other.

WILLIAM KUNSTLER: Well, you know, I understand that, but I think that you get into Street, I thought, which also relied on Barnette. There he did exactly what we’re talking about here. He burnt the flag in the street over the question of James Meredith being shot in Mississippi in 1966.

CHIEF JUSTICE REHNQUIST: And what was the holding of the court in Street?

WILLIAM KUNSTLER: Well, in Street essentially the court indicated that you couldn’t tell whether it was speech or whether it was flag burning and, therefore, the court reversed in the Street case. But in so deciding in relying on Barnette, the court said, essentially I thought, that it was an illegitimate interest in Street to compel respect by prohibiting criticism of the flag, including flag burning. So, we have a little difference of opinion on the facts. I know the facts are somewhat different except a flag was burned in the street by Mr. Street in a political protest over a shooting in Mississippi of a civil rights figure. But I think the analogy is the same. Can you say you can’t force them to salute the flag or pledge allegiance to the flag, but can you then say we can force them not to show other means of disrespect for the flag, other means of protest over the flag by saying you can’t burn the flag? I think they’re the same, in all due deference.

CHIEF JUSTICE REHNQUIST: Well–

WILLIAM KUNSTLER: I don’t know if I’ve convinced you, but–

CHIEF JUSTICE REHNQUIST: Well, you may have convinced others. But for example, the “Live Free or Die” case. Do you remember that?

WILLIAM KUNSTLER: I certainly do.

CHIEF JUSTICE REHNQUIST: It was from from New Hampshire, and where we said that New Hampshire can’t require you to carry around on your license plate the expression “Live free or die”. But certainly New Hampshire could have prohibited making some statements on your license plate.

WILLIAM KUNSTLER: But I think in Wooley, as I recall it, they painted out. They did an affirmative act and painted out the “Live free or die” motto. The Jehovah’s Witnesses didn’t believe in that, so they painted it out. They did enact and then the question was was that act violating some criminal code.

CHIEF JUSTICE REHNQUIST: And the court said no, you can’t prohibit that sort of thing, but the reasoning of the Court was that you can’t require someone to make an affirmation. To me that’s West Virginia versus Barnette. But, if someone applies for a New Hampshire license plate that has a lot of foul language on it, very likely that limited thing can be proscribed.

WILLIAM KUNSTLER: I know. That I would agree with you on that, but I think that to get away from Wooley against Maynard would be a mistake here. That’s putting something on the license plate that is profane or whatever. But in Wooley, as I understood it, the act that they, Jehovah’s Witnesses did, was to paint out. They burnt the flag in essence. They painted out. I don’t think we’re going to reach eye to eye on this. [Laughter] I have that distinct feeling.

Now, with reference to punishment for communicating ideas about the flag, it’s wrong to punish people for having a different idea about the flag, and I agree with Justice Scalia that flag burning of a single flag in front of the new City Hall in Dallas doesn’t lessen the value as a symbol.

With reference to breach of the peace, none of the flag cases that you have before you have involved a breach of the peace. The only one I found where there was any violence was what Judge Tuttle found in the Monroe case, where they burned an American flag in front of the federal building and someone burned an Iranian flag. When the Iranian flag was burned, there was one act of violence, but not when the American flag was burned. And Judge Tuttle pointed out that there was no clear and present danger.

One cannot equate serious offense with incitement to breach the peace. And I think that any breach of the peace argument here falls on its face.

I would just like to end my argument. I think this is a fundamental First Amendment case, that the First Amendment to the written Constitution is in jeopardy by statutes like this. And I wanted to essentially close with two remarks. One Justice Jackson said in Barnette:

“Those who begin coercive elimination of dissent soon find themselves eliminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. The First Amendment was designed to avoid these ends by avoiding these beginnings.”

And I think that’s an important statement over the years from Justice Jackson. And then, in just a recent article in the New York Times called “In Chicago a Holy War Over the Flag,” J. Anthony Lukas said:

“Whatever pain freedom of expression may inflict, it is a principle on which we can give no ground.”

And I understand that this flag has serious important meanings. The Chief has mentioned many times that it is not just pieces of material, blue and white and red. That has real meaning to real people out there. But that does not mean that it may have different meanings to other people out there and that they may not under the First Amendment show their feelings by what Texas calls desecration of a venerated object. I think it’s a most important case. I sense that it goes to the heart of the First Amendment, to hear things or to see things that we hate test the First Amendment more than seeing or hearing things that we like. It wasn’t designed for things we like. They never needed a First Amendment.

Thank you very much.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Kunstler. The case is submitted.

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