226 ❯ STEP 5. Build Your Test-Taking Confidence
Source E
Chief Justice William Rehnquist’s dissenting opinion in the Texas v. Johnson (1989) c a se.
Available at http://www.bc.edu/bc_org/avp/cas/comm/free_speech/texas.html.
In his dissenting opinion in Texas v. Johnson (1989), regarding Texas law against
flag burning, the late Chief Justice William H. Rehnquist wrote,
The American flag, then, throughout more than 200 years of our history, has come
to be the visible symbol embodying our Nation. It does not represent the views of any
particular political party, and it does not represent any particular political philosophy.
The flag is not simply another “idea” or “point of view” competing for recognition in
the marketplace of ideas. Millions and millions of Americans regard it with an almost
mystical reverence regardless of what sort of social, political, or philosophical beliefs
they may have. I cannot agree that the First Amendment invalidates the Act of Con-
gress, and the laws of 48 of the 50 States, which make criminal the public burning of
the flag.
Rehnquist also argued that flag burning is “no essential part of any exposition
of ideas” but, rather “the equivalent of an inarticulate grunt or roar that, it seems
fair to say, is most likely to be indulged in not to express any particular idea, but
to antagonize others.”Source F
“The case for flag-burning: An amendment banning it would make America less free.”
An editorial that appeared in the Los Angeles Times, June 27, 2006.
THERE ARE MANY ARGUMENTS AGAINST a proposed constitutional amend-
ment to outlaw “the physical desecration of the flag of the United States.” Let us count
the ways in which the amendment, which is disturbingly close to the 67 votes required
for Senate approval, is unworthy of that body’s support:- It’s a “solution” to a problem that doesn’t exist. There has been no epidemic of
flag-burning since the Supreme Court ruled in 1989 that destruction of Old
Glory as a protest was symbolic speech protected by the 1st Amendment. - As Sen. Mitch McConnell (R-Ky.) pointed out, “The First Amendment has
served us well for over 200 years. I don’t think it needs to be altered.” Placing
a no-flag-burning asterisk next to the amendment’s sweeping guarantee of free
speech is a mischievous idea, and it could invite amendments to ban other sorts
of speech Americans find offensive.
But the best argument against the flag amendment is the one some opponents are
reluctant to make for fear of political fallout: It would make America less free.
Rare as flag-burning may be, a nation that allows citizens to denounce even
its most sacred symbols is being true to what the Supreme Court in 1964 called
the “profound national commitment to the principle that debate on public issues
should be uninhibited, robust and wide-open, and that it may well include vehe-
ment, caustic, and sometimes unpleasantly sharp attacks on government and public
officials.”
In that decision, and in 1989, the court interpreted the free-speech protections of
the First Amendment generously but correctly. The Senate, including Feinstein and
fellow Democrat and Californian Barbara Boxer (who has opposed a flag-burning
amendment in the past), should let those decisions be.