Burning the American Flag

This week (June 21) in 1989, in Texas v. Johnson, the U.S. Supreme Court handed down one of its more controversial decisions when it ruled that Gregory Johnson could not be convicted for burning an American flag — which he did at the 1984 Republican National Convention — because in so doing he was engaging in a form of political speech, which is protected under the First Amendment’s free speech provisions.

For millions of Americans it was not the court’s finest hour, and although burning the American flag does, and should, arouse passionate feelings of anger and disgust among the vast majority of our citizens, that is precisely why the Founding Fathers wrote a Constitution and created a Bill of Rights.  The Founders feared the effect that passion — anger, disgust — could have on good government, good law and social harmony.  The Bill of Rights was one of the principal safeguards against such passion.

And the First Amendment was arguably its most important safeguard.  Ask yourself what possible reason would someone burn an American flag other than to make some kind of statement and you begin to see why the Supreme Court ruled the way it did. Political speech comes in many forms, but whatever its form, it deserves protection.

Even when — make that especially when — such political speech is being promulgated by a small minority (such as flag burners) and the political message is expressed in ways unpopular with the majority.

What was paramount in (my hero) James Madison’s mind when he created the Bill of Rights was that it should protect the rights of every American, but especially Americans who find themselves in the minority.  Majorities by definition don’t need protection — they’re in the majority — but the power of their numbers should not allow them to stifle the views of those who disagree with them.  Such “tyranny of the majority” had been the great fear of the Founding Fathers in the 1780s as they witnessed popular majorities in the various state legislatures pass laws that favored them at the expense of minority rights. The Bill of Rights was, in part, created to protect those minority rights against the passions of an aroused majority.

In Texas v. Johnson the U.S. Supreme Court ruled that protecting a symbol — the American flag — is not as important as protecting one of the bedrock constitutional principles that define our nation.  Indeed, desecrating our flag — however vile — can be looked at as an affirmation, and a reminder, of our freedom to express our sentiments, popular or unpopular, without fear of government reprisal.

Something to think about given that, at one time or another, all of us have been in the minority, saying and doing things offensive to the majority.