History

Much of the debate over the S.J. Res. 12 is centered around the Supreme Court decision in the case of Texas v. Johnson. In 1984, the Republican National Convention was held in Dallas, Texas. A member of the Revolutionary Communist Youth Brigade named Gregory Johnson participated in a political demonstration. Johnson protested the policies of the Reagan administration as well as some Dallas-based corporations. After marching through the city, Johnson soaked an American Flag in kerosene and burned it. While the flag was burning, the other protestors chanted, "Red, white and blue; we spit on you!"

Johnson was arrested and convicted under Texas statute for desecrating a venerated object. He was sentenced to one-year in jail and given a $2000 fine. The conviction was upheld by the intermediate Texas appellate court but was later overturned by the final court of appeals in Texas. The case was argued before the Supreme Court in the spring of 1989.

In a mixed and controversial 5 to 4 decision, the court ruled in favor of Johnson. It determined that the burning of the flag was an act of expression protected by the First Amendment. The court also found that the Texas statute was not drawn narrowly enough to meet the demands of "breaching the peace" to prohibit the burning of the flag. Justice William Brennan delivered the majority opinion of the court:

"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."

While the Texas v. Johnson decision points out the right of a citizen to freely protest as guaranteed by the First Amendment, Justice Rehnquist�s dissenting opinion argues that the act of burning the flag is not speech, but a physical deed. He establishes the fact that Johnson was not arrested for what he said; he was arrested for the act he committed:

"Here it may equally well be said that the public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace. Johnson was free to make any verbal denunciation of the flag that he wished; indeed, he was free to burn the flag in private�He shouted out various slogans during the march, including: "Reagan, Mondale which will it be? Either one means World War III"; "Ronald Reagan, killer of the hour, Perfect example of U.S. power"; and "red, white and blue, we spit on you, you stand for plunder, you will go under." For none of these acts was he arrested or prosecuted; it was only when he proceeded to burn publicly an American flag stolen from its rightful owner that he violated the Texas statute."

Having established a distinction between speech and the act of burning the flag, Rehnquist addressed another question common in free speech cases. Are all words protected under the First Amendment as free speech? In the case of Schenck v. United States, the Supreme Court addressed that question. The court unanimously ruled that there are limitations on what is protected speech under the First Amendment. The precedent was set which permitted the government to narrowly tailor those limits. In 1919, Oliver Wendell Holmes delivered the opinion of the court. He stated:

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

Along with the free speech aspect of the Texas v. Johnson ruling, the court also found that the Texas statute did not meet the demands of "breaching the peace" found in Chaplinsky v. New Hampshire. In this case, Walter Chaplinsky shouted obscenities at a New Hampshire town Marshall. In its ruling, the court articulated the "fighting words" doctrine. Proponents of the Flag Burning Amendment point out that Chaplinsky v. New Hampshire sets precedence for limiting what is protected under the First Amendment. In 1942, Justice Frank Murphy delivered the unanimous opinion of the court:

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

Although these cases establish precedent for the government to limit what a person can say in the interest of the general public, it is important to remember that S.J. Res. 12 sets no limitations on what a person can say or what ideas can be expressed. What it does do is prohibit the tangible act of desecrating the flag. The American flag transcends any biased loyalty we may have for political parties or for other people. Regarding the flag, Justice Rehnquist argued:

Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag."

S.J. Res. 12 establishes the protection and reverence that the flag of the United States of America deserves.