Flag Burning 1989

The Federal Convention convened in the State House in Philadelphia on May 14, 1787, to revise the Articles of Confederation. The members adjourned from day to day until the required number of members (being seven states) were present on May 25, 1787. Through discussion and debate it became clear by mid-June that, rather than amend the existing Articles, the Convention would draft an entirely new frame of government. All through the summer, in closed sessions, the delegates debated, and redrafted the articles of the new Constitution. Among the chief points at issue were how much power to allow the central government, how many representatives in Congress to allow each state, and how these representatives should be elected--directly by the people or by the state legislators. The work of many minds, the Constitution stands as a model of cooperative statesmanship and the art of compromise. During the debates on the adoption of the Constitution, its opponents repeatedly charged that the Constitution as drafted would open the way to tyranny by the central government. Fresh in their minds was the memory of the British violation of civil rights before and during the Revolution. They demanded a "bill of rights" that would spell out the immunities of individual citizens. Several state conventions in their formal ratification of the Constitution asked for such amendments; others ratified the Constitution with the understanding that the amendments would be offered. On September 25, 1789, the First Congress of the United States therefore proposed to the state legislatures 12 amendments to the Constitution that met arguments most frequently advanced against it. The first two were not ratified, but articles 3 to 12 were and constitute the first 10 amendments of the Constitution, known as the Bill of Rights. The addition of the Bill of Rights gave the people new sets of protection from the government. Of all of the amendment, the First Amendment is most popular among the people. It states, “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.” In short, the government can do nothing to sensor what can be said or done, as long as what is said or done does not harm anyone (Such as someone yelling “Fire!” in a movie theater). When situations about free speech and exercising one’s right to it, most cases are simple to determine. Most of the cases are about the words someone has used and how he/she/they used them. What becomes a problem for the courts is when free speech is not speech or someone who exercises free speech says nothing. When free speech is exercised through the use of a symbol, this form of speech is called symbolic speech or “nonspeech”. The same as speech, symbolic speech or “nonspeech”, as long as the conditions met, is protected under the First Amendment as well. But what is the criterion for allowing or limiting symbolic speech?”

A determinate that was put in place in order to justify whether a situation was exercising the First Amendment was brought on by the case of the United States v. O’Brien. In 1948, the Selective Service Act was created and required all male American citizens to register with a local draft board upon reaching the age of 18 and draft cards were created and given to each male who registered. In 1965, an amendment to this act, 50 U.S.C. Ð'§ 462(b)(3), was created to prevent the knowing and willful destruction of these cards. Many felt that this amendment was created because at the time, citizens were protesting the Vietnam War by public burnings of these draft cards. For publicly burning his own draft card, David Paul O’Brien was arrested. Representing himself, he presented his own reasons as to why he committed the act, but the court found him guilty under 50 U.S.C. Ð'§ 462(b)(3) and sentenced him to six years of jail time. After appealing and having the conviction affirmed by the Court of Appeals, both O’Brien and the United States petitioned for review of the case.

After reviewing the case, in which O’Brien was still found guilty, Chief Justice Earl Warren when a regulation prohibits conduct that combines "speech" and "nonspeech" elements, "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." The regulation must 1) be within the constitutional power of the government to enact, 2) further an important or substantial government interest, 3) that interest must be unrelated to the suppression of speech (or "content neutral", as later cases have phrased it), and 4) prohibit no more speech than is essential to further that interest. The Court ruled that 50 U.S.C. Ð'§ 462(b)(3) satisfied this test. This determinate created in this case is known today as the “O’Brien Test” and has been a contributing factor in many cases which followed O’Brien to include Texas v. Johnson.

During the 1984 Republican National Convention in Dallas, Texas, Gregory Lee "Joey" Johnson, participated in a political rally, which consisted of more than 100 protestors who marched, to protest the policies of the Reagan administration and some Dallas-based corporations. After marching, chanting, and protesting throughout the city streets, one of the group’s members pulled out an American flag and handed it to Johnson. Johnson then poured kerosene on it and set it on fire while chanting, “America red, white, and blue, we spit on you!” No one at the rally was injured, but there were some onlookers who were offended by the burning of the flag. A man who happened to be passing by the protest after the flag burning retrieved the remains and buried them in his back yard. Johnson was the only participant arrested and was charged under a Texas statue that prohibited flag desecration. The Dallas County Criminal Court No. 8 gave him one year of jail time and two thousand dollar fine for the crime.

In 1986, Johnson appealed his case to the Court of Appeals for the Fifth District of Texas. The Court upheld the decision and denied Johnson’s appeal. He appealed a second time in 1988 and the Texas Court of Criminal Appeals overturned the prior courts’ decision. The State of Texas’s arguments during the appeal consisted of two points’ of interests: First, the burning of the flag and the rally violated the “Breaches of the Peace” (the same as “Disturbing the