Is Flag Burning Free Speech, or an Illegal Act?
Free Speech and the Law
In 1989 the Supreme Court ruled in Texas vs. Johnson 491 U.S. 379 that flag burning was indeed freedom of expression.
Here is the short version according to the Government Website uscourts.gov
Gregory Lee Johnson burned an American flag outside of the convention center where the 1984 Republican National Convention was being held in Dallas, Texas.
Johnson burned the flag to protest the policies of President Ronald Reagan. He was arrested and charged with violating a Texas statute that prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger in others.
A Texas court tried and convicted Johnson. He appealed, arguing that his actions were “symbolic speech” protected by the First Amendment. The Supreme Court agreed to hear his case.
Supreme Court Ruling on Free Speech
Here is the reasoning behind the decision in the Texas vs. Johnson case according to uscourts.gov.
The majority of the Court, according to Justice William Brennan, agreed with Johnson and held that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment.
The majority (5 to 4) noted that freedom of speech protects actions that society may find very offensive, but society’s outrage alone is not justification for suppressing free speech.
In particular, the majority noted that the Texas law discriminated upon viewpoint, i.e., although the law punished actions, such as flag burning, and might arouse anger in others, it is specifically exempted from prosecution actions that were respectful of venerated objects. (In other words they can burn what they want in a protest), e.g., burning and burying a worn-out flag.
The majority said that the government could not discriminate in this manner based solely upon viewpoint.
What about the public safety?
The recent incident involving the Fed-Ex driver that put out the fires and defended the flag has drawn national attention, but one thing to note is that the flag burners were ultimately charged for burning without a permit. No one seems to be mentioning it.