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Texas v. Johnson - The 1st Amendment Right to Burn the American Flag: Something You May Not Have Known [148]

Updated on January 8, 2017
My Esoteric profile image

ME has spent most of his retirement from service to the United States studying, thinking, and writing about the country he served.


YOU MAY NOT HAVE EVER HEARD OF TEXAS v. JOHNSON, 491 U.S. 397 (1989), and reaffirmed in U.S. v. Eichman, 496 U.S. 310 (1990), but you probably have heard of it, especially conservatives, as the infamous Supreme Court ruling which allowed the buring of the American flag as an expression of free speech. It is a decision I opposed then and I still oppose today. But, since it has been made, it is, until it is overturned by a subsequent Supreme Court decision, which I hope happens, or a Constitituional Amendendment is passed, which I would also support, that says something different, it IS the Law of the Land and the President must and should enforce it.

Briefly, the case was about a flag burning in Texas which violated a Texas statute against burning the American flag. It made its way through the court system to the Supreme Court. Now, the rest of the story as Paul Harvey used to say.

  1. Did you know what was NOT covered under the Texas statute and was OK to burn in protest? Why it was the Constitution of the United States of course, I wonder why?
  2. Do you know who the deciding vote way in this very close 5-4 decision? ... Justice Antonin Gregory Scalia, one of the two most conservative justices on the court at the time. Go figure.

I thought curious minds would want to know.

Manhart's Own Desecration

Click thumbnail to view full-size

UPDATE 4/20/15

THIS ISSUE CAME UP AGAIN AT VALDOSTA UNIVERSITY in Georgia. In this case demonstrators protesting the violence against blacks was using the flag as a symbol of their slavery, once real and now a near reality for many blacks. They protested this condition by tromping on the American Flag as part of the protest; quite legal given the above Supreme Court ruling.

This had been going on for days when Michelle Manhart, a former Air Force vet, took notice and complained to the university about the desecration. Manhart has had her own issues with the flag in that she was reprimanded by the Air Force for appearing in Playboy in uniform with a flag draped over her; in this case she was "honoring" the flag. The Air Force took exception to either or all of 1) appearing in Playboy, 2) wearing the uniform in Playboy, and/or 3) having the flag draped over her. She was demoted and soon left the Air Force under, according to her, honorable conditions. (Her husband is still serving in the Air Force deployed overseas.) Further, she has appeared nude (appropriate parts hidden by arms or legs) on the cover of xxxx with the flag displayed behind her. In another nude picture, she had little American flags covering her nipples.

Michelle's complaints to the university amounted to nothing, so on or about April 19, 2015, she took matters into her own hands. She went to the university during one of the protests and took the flag away from the protesters (which I applaud) in order to allegedly properly dispose of it given it had been used in many protests. A scuffle broke out as the protesters tried to take it back; they lost. The campus police tried to do the same; it took three of them and, judging from the video, a lot of effort to wrest control of the flag away from her. Ultimately the police detained her, threatened to file federal charges of some sort, but then let her go. The Valdosta University has banned her from its campus.

Do I condone her actions with Playboy, no, especially the one with the flag draped on the floor. Do I support her "protest" at Valdosta, yes; illegal though it may be.

© 2012 My Esoteric


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    • My Esoteric profile image

      My Esoteric 5 years ago from Keystone Heights, FL

      From where I stand, JSC, you appear to be totally missing the point. But if Josak were one type of Protestant in England in the 1600s and spoke freely about his religion, other Protestants, who controlled the state would most likely have removed his head from his body. The first group of Protestants finally got tired of that and more or less founded America (where, of course they started doing exactly the same thing to other Protestants they didn't agree with as well as Catholics; although they did swap out guioteen for a hangman's noose instead.)

      Yes, I do agree with you that the symbolism of American's burning the American flag is just as you say, hateful; it is telling the world that the flagburners believe America is a piece of crap and no better than Iraq at its worse and has absolutely no redeeming value at all. Besides hurting me a great deal, as it was designed to do, it tells me these people are leftist simpletons who have no more grasp on reality then those who are as far Right as they are far Left.

      What I also know is that as much as I disagree with their ruling it is, nevertheless, the law of the land and if the President sent me, as part of the Arrmy to defend their right to burn the flag, I would go without protest.

    • My Esoteric profile image

      My Esoteric 5 years ago from Keystone Heights, FL

      Also, Josak, consider this. In your first comment you say "I think it [flag burning] should be legal simply because we should extend maximum freedoms to all citizens so long s the actions do not harm others"

      Besides the point I have already made about physical vs. emotional harm, I offer this regarding making such an overly generalized statement.

      Let me start by making an assumption and say that you find the actions of the mortgage lenders during the recent housing bubble crisis leading up to the 2008 recession despicable and, for the most part illegal (fraudulant) and should have been prohibited from happening in the first place.

      Those who supported those activities, mainly on the political right, say they broke no laws, it was buyer beware; those poor suckers who were making no income should have known they couldn't have afforded those million dollar homes.

      Broadly interpreting your opening statement, those on the right are correct, while not political speech, it is speech nevertheless, and so long as the speech by the lender wasn't purposeful lying then it can be argued it is technically not illegal and covered by free speech and they can continue to convince these poor dupes into buying something they can't afford to their hearts content because the government has no right to make their speech illegal.

      I am not sure you can use after the fact results to proscribe before the fact actions that may be marginablly different. I don't know, maybe you can, it is something to think about.

      Do you agree, I don't.

    • My Esoteric profile image

      My Esoteric 5 years ago from Keystone Heights, FL

      I understand your reply Josak and in 99% on instances agree, including Larry Flint, but I counter with this: it can be argued, I think, that to see the American flag or the other two founding documents burned or in any other way destroyed, even images of them, causes emotional harm to a whole nation, just like yelling fire in an otherwise safe but crowded theater can cause physical harm, in a way that "no other action", not speech, can.

      In my mind, that is what separates that specific action from all others and deserves special consideration. Supreme Courts have used this type of reasoning in the past, including the "fire in the theater case" (Schenck v. United States in 1919.), or a semblance of it anyway. In this case that wouldn't have worked because Texas only protected the flag and not the other two documents. Even I might have defeated it on those narrow grounds but supported it on the much broader grounds.

      Also consider that one liberal justice must have voted No to this 5-4 decision for Scalia to be the deciding Yea vote.

      Anyway, thanks for helping me put some reasoning behind my gut.

    • Josak profile image

      Josak 5 years ago from variable

      Esoteric, I really like your last reply, it seems really honest and i get what you are saying, it's an emotional reaction, essentially it offends you also, but as the Supreme court affirmed in the Larry Flint case, we do not legislate for taste and you do not have the right to not be offended (except by not watching). So I totally get the emotional reaction but i don't think we should use the fore of government to oppose it.

    • Josak profile image

      Josak 5 years ago from variable

      JC it's very simply I have never burned the American flag, never been tempted since I have been a citizen either but that has nothing to do with the limitation of freedoms, taking away peoples freedoms when their actions do not directly harm other is always wrong, it's the mark of tyranny, you apparently support that.

    • My Esoteric profile image

      My Esoteric 5 years ago from Keystone Heights, FL

      Thank you all for your comments. To answer JS, nope, I never have. And to all of those who support the 5-4 decision, I have nothing of substance to offer in rebuttal because your arguments are usually the ones I make.

      But, in the case of the American flag and our founding documents, I have a very personal emotional tie and, to me, burning those things is no different than burning down America itself and, therefore, me along with it. There is absolutely no logic involved to my reaction, just gut emotion on this one.

      To me, there needs to be an emotional line somewhere and while I know it is not the same, burning the flag or the Declaration of Independence or the U.S. Constitution is the same as yelling FIRE in a crowded movie theater, don't you see.

    • Josak profile image

      Josak 5 years ago from variable

      I have plenty of family who fought and died for this flag, actually I choose to believe they died for the values that flag represents the key one being freedom, the government should have nothing to do with what a free individual chooses to burn so long as they paid for it. otherwise it's just tyranny in the name of patriotism, if someone does not like the flag or does not like what it represents then they are free to express that, whether it makes them morons is a separate issue.

      To think you had the nerve to lecture me about taking people's freedoms... Burning a flag is obviously a form of expression, it makes a pretty clear point don't you think? You want to make it illegal....

    • MizBejabbers profile image

      Doris James-MizBejabbers 5 years ago

      The First Amendment is entitled Religious and Political Freedom. What I don't like to see is a physical act called "freedom of speech". I think that freedom of speech should be confined to the spoken and written word. I think it is a total misnomer to call flag burning "speech". If the government wants to allow it under the 1st Amendment, they should call it something else (freedom of action, maybe). Now having said that, I think that anyone who hates our government enough to burn our flag should move to another country. If a few of these people experienced the atrocities that we read about or see on television each day, they might come to understand what our freedom means.

      Criticize me all you want because I said that, but I visited the Soviet Union during perestroika, and I experienced first-hand what it is like to have your speech and your actions under constant scrutiny. Our Russian tour leader was almost arrested because they thought someone in our group paid for something at a flea market in American money. She was interrogated for at least 20 minutes before she was released. I saw her white-faced and shaking for hours after that. It was a relief to come home.

    • Josak profile image

      Josak 5 years ago from variable

      Interesting, I didn't know that, I think it should be legal simply because we should extend maximum freedoms to all citizens so long s the actions do not harm others. Also it seems like a legitimate message, one we may disagree with but still completely legitimate.