Flag Burning and Free Speech

In the case of Texas v. Johnson, the United States Supreme Court ruled that the state of Texas could not prosecute Gregory Lee Johnson for burning the flag without violating the First Amendment (Goldstein xi). Johnson was a member of the Revolutionary Communist Youth Brigade (RCYB) who was one of several protestors prosecuted under a Texas law for burning a flag in front of the Dallas City Hall. Johnson appealed his case to the Supreme Court, which overturned his conviction and ruled that flag desecration was protected expression under the First Amendment. This paper reviews Robert Goldstein's exploration of the case, with particular emphasis on Justices William Brennan, Antonin Scalia and Chief Justice William Rehnquist. The paper also includes several analyses of the significance and implications of the case by independent legal scholars.

Goldstein begins by framing the issue of flag burning as a "symbolic fight over a symbol" (Goldstein xi). He points out similar fights over the Confederate flag and Cuban refugee Elian Gonzalez. Goldstein explains that, in such cases, the fight over the symbol is actually a fight over what the symbol represents. In the flag burning cases, therefore, the actual fight was over the tradition and politics that the flag represented.

Goldstein begins by tracing the political history of "protecting the flag." The book traces the U.S. flag from its relatively inglorious creation at the birth of the

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y the groundwork for what would happen when Texas v. Johnson came before the Court. Goldstein's description of how the Court reached its published opinion in Johnson is very instructive of Court behavior. He includes excerpts from the oral arguments, which demonstrate, for example, Justice Scalia's unexpectedly argumentative questioning of the Texas lawyer. It was this questioning, by a conservative judge expected to rule against Johnson, which began to suggest to the public that the Court could possibly overturn Johnson's conviction and hold that flag burning was protected speech. Goldstein writes that Brennan chose to write the majority opinion then assigned the draft to one of his clerks. This draft essentially became the Court's opinion. He also notes that Brennan chose to address the dissenting Justice's issues in the draft. None of the dissenting judges, however, switched sides. Realizing the significance of the case, Brennan broke from the Court's usual procedure and read portions of the opinion when announcing its publication. He began with what Goldstein describes as an emotional reading of the reasons why the Texas law could not stand, namely the "bedrock principle underlying the First Amendment" (Goldstein 105). He th
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Approximate Word count = 1679
Approximate Pages = 7 (250 words per page)

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