Burning the American flag
In Dallas in 1984, one Gregory Lee Johnson participated in a political demonstration against the policies of the Reagan administration. He unfurled the American flag, doused it with paraffin (“kerosene” in Americanese), and set it on fire. Such action was illegal in Texas. The Texas Penal Code included a provision that: “A person commits an offense if he intentionally or knowingly desecrates … a state or national flag“; and the definition “‘desecrate’ means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action“.
The USA Bill of Rights consists of the first ten Amendments to the Constitution. The First Amendment includes: “Congress shall make no law … abridging the freedom of speech.”
Johnson was guilty as charged, but he challenged the constitutionality of the Penal Code under the First Amendment. The matter was litigated all the way to the Supreme Court (their apex Court), and judgment was delivered on 21 June 1989 in Texas v Johnson. The nine judges split four to five on the question.
The majority held that Johnson’s conduct constituted “speech” under the Supreme Court’s previous decisions that protection of free speech “does not end at the spoken or written word” and extends to “[a]n intent to convey a particularized message [in circumstances where] the likelihood was great that the message would be understood by those who viewed it” or “sufficiently imbued with elements of communication” (expressive conduct).
The State of Texas had another string to its bow. In accordance with a previous Supreme Court decision, the government generally has a freer hand in restricting expressive conduct than it has in restricting the spoken or written word. If there is a sufficiently important governmental interest in regulating the relevant conduct, that can justify the incidental limitation of expressive conduct. The State argued two separate averred interests:
– preventing breaches of the peace; and
– preserving the flag as a symbol of nationhood and national unity.
The majority rejected both averred interests, as:
– no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag, and Johnson’s expressive conduct did not fall within that small class of “fighting words” that are “likely to provoke the average person to retaliation, and thereby to cause a breach of the peace”; and
– preserving the flag as a symbol is related to the suppression of expression.
Johnson prevailed in Court. Congress soon passed the (federal) Flag Protection Act of 1989. The Act included a provision that: “Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined …” On the day that the Act took effect, there were protests in various cities. In Washington, D.C, an unintimidated Johnson and three companions burnt American flags on the steps of the Congress building, in full view of a crowd of reporters and photographers. Johnson and companions were charged, as were flags burners in Seattle.
The matters were again litigated all the way to the Supreme Court, and judgment was delivered on 11 June 1990 in the consolidated case known as United States v. Eichman. The same nine judges split the same four to five on the question.
The Government conceded that the flag-burning constituted expressive conduct, but argued that flag-burning as a mode of expression, like obscenity or “fighting words,” does not enjoy the full protection of the First Amendment. The majority disagreed:
“National unity as an end which officials may foster by persuasion and example is not in question. … Government may create national symbols, promote them, and encourage their respectful treatment. But the Flag Protection Act goes well beyond this by criminally proscribing expressive conduct because of its likely communicative impact. We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets … 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.”
Johnson prevailed in Court again. Congress in time passed The Flag Desecration Amendment, in the form of a constitutional amendment to the Bill of Rights, to allow Congress to prohibit by statute and provide punishment for the physical desecration of the American flag. But such a constitutional amendment must also be approved by a two-thirds majority in the Senate, and be ratified by at least three-fourths of the 50 state legislatures. The Amendment was co-sponsored by then Senator Hillary Clinton, but failed in the Senate.
In November 2016, then President-elect Donald Trump tweeted: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” There were protests in various cities on the day of Trump’s inauguration as President on 20 January 2017; many American flags were burnt. Opinion polls in the USA indicate that majority public support may be in favour of making flag-burning illegal. This debate may again ignite soon – perhaps once Trump fills the vacant seat in the Supreme Court.
The South African Bill of Rights provides that “Everyone has the right to freedom of expression” (but with limitations). Flag-burning is a form of “expression”. The limitations are (1) propaganda for war; (2) incitement of imminent violence; and (3) advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm. And the rights in the Bill of Rights may be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. We anticipate that the Constitutional Court is unlikely to rule against burning of the South African flag, but the political affiliation of the flag-burner may play a role in the decision.