Key
Excerpts from the Dissenting Opinion
The
case was decided 5 to 4.
Chief Justice Rehnquist wrote the main
dissenting opinion.
. . . For more than 200 years, the American flag has
occupied a unique position as the symbol of our Nation, a
uniqueness that justifies a governmental prohibition against
flag burning in the way respondent Johnson did here.
The American flag . . . throughout
more than 200 years of our history, has come to be the visible
symbol embodying our Nation. It does not represent the views
of any particular political party, and it does not represent
any particular political philosophy. The flag is not simply
another "idea" or "point of view" competing for recognition in
the marketplace of ideas. 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.
The result of the Texas statute is
obviously to deny one in Johnson's frame of mind one of many
means of "symbolic speech." Far from being a case of "one
picture being worth a thousand words," flag burning is the
equivalent of an inarticulate grunt or roar that, it seems
fair to say, is most likely to be indulged in not to express
any particular idea, but to antagonize others. . . . The Texas
statute deprived Johnson of only one rather inarticulate
symbolic form of protest-a form of protest that was profoundly
offensive to many-and left him with a full panoply of other
symbols and every conceivable form of verbal expression to
express his deep disapproval of national policy. Thus, in no
way can it be said that Texas is punishing him because his
hearers-or any other group of people-were profoundly opposed
to the message that he sought to convey. Such opposition is no
proper basis for restricting speech or expression under the
First Amendment. It was Johnson's use of this particular
symbol, and not the idea that he sought to convey by it or by
his many other expressions, for which he was punished.
. . . Uncritical extension of constitutional protection to
the burning of the flag risks the frustration of the very
purpose for which organized governments are instituted. The
Court decides that the American flag is just another symbol,
about which not only must opinions pro and con be tolerated,
but for which the most minimal public respect may not be
enjoined. The government may conscript men into the Armed
Forces where they must fight and perhaps die for the flag, but
the government may not prohibit the public burning of the
banner under which they fight. I would uphold the Texas
statute as applied in this case.
Questions to Consider:
- Chief Justice Rehnquist agrees with the majority that
expression may not be punished because of the negative
reaction of people who observe that expression. What does he
say is the real justification for anti-flag burning
laws and why Johnson was punished?
- In Chief Justice Rehnquist's opinion, how was the unique
status that the flag enjoys established?
- What point is Chief Justice Rehnquist trying to make
about flag burning when he mentions that the government may
send young men into battle to die for the flag, but may not
prohibit the public burning of the flag? Do you agree or
disagree with this argument?
Explain.
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