Flag burning and the difference between speech and expression

By Rebecca Burgess

During and in the decade following the Vietnam War, flag burning of American flags by American citizens in public protest became a near-celebrated thing, as plaintiff Gregory Johnson successfully defended a right before the Supreme Court to go unpenalized for such behavior (Texas v. Johnson). A newfound right to freedom of expression (rather than speech) was suddenly found by a closely divided Court (5–4) within the hidden corners of the Constitution.

Supporters of the “NYC Revolution Club” burn the flag outside the Trump International Hotel and Tower in New York, November 29, 2016. REUTERS/Shannon Stapleton.

Fast forward thirty-plus years, and others burning the American flag in the wake of Trump’s election to the presidency are reprising the role of Johnson among others — then protesting the election of Ronald Reagan. But in 1984, when Johnson stole and burned a flag, it was within the context of 48 out of 50 states plus federal statute forbidding it. Then, writing for the five-justice majority, Justice William Brennan wrote that Texas had punished Johnson for exercising the “freedom that [the flag’s] cherished emblem represents,” meaning that by preventing Johnson from expressing a political inclination through arson, it was Texas, not Johnson, who committed an offense against the flag.

As the late AEI Constitutional scholar Walter Berns wrote then, Justice Brennan’s argument took the form of a syllogism: “the flag stands for the Republic, the Republic stands for freedom of expression, therefore the flag stands for freedom of expression.” But what that meant was anchored in a previous line of argument found in a 1961 dissent from Justice Hugo Black that even if “education and contrary argument” proved an insufficient remedy against (communist or fascist) speech, “the only meaning of free speech must be that the revolutionary ideas will be allowed to prevail.”

In his essay on “Flag Burning and Other Modes of Expression,” Berns delves into the complexities of this seeming dilemma, with skill and care and without sentimentality canvassing the debate. Both Berns essays are essential reading this political season, if only for the warning Berns gives about the dangers of treating flag burning as unimportant, and conflating issues of freedom of speech with freedom of expression.

Expression is an utterance of feeling, Berns reminds, while self-expression — what is really meant by “freedom of expression” — is almost always angry, because it is in fact self-assertion — an attempt to acquire meaning only by asserting against others. But a political community, especially one made up of citizens, can’t exist only by negating each other. They need some measure of common speech — by the very fact of being a citizen, the citizen is obliged to think of his or her fellows, and “of the whole of which he is a part.” Besides, as Berns points out, it is speech, not self-expression, that requires a listener — it’s speech that

requires conversation and, in the political realm especially, deliberation. It is a means of arriving at a decision, of bringing people together, which requires civility and mutual respect; and in a polity consisting of blacks and whites, Jews, Muslims, and Christians, liberals and conservatives, and peoples from every part of the globe, civility and mutual respect are a necessity. So understood, speech is good, which is why the Constitution protects it.

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