At the 1984 convention at Dallas, there was a protest.
What else is new?
And during this protest,
a group of people marched towards Dallas City Hall.
One member of this group stole a flag from a flag pole,
gave it to Gregory Lee Johnson,
who then doused it with kerosene and lit it aflame.
In the crowd, there was the chant:
"Red, white, and blue, we spit on you."
Gregory Lee Johnson was duly convicted of violating the law
that prohibited a desecration of a venerated object.
His objection was that this law prohibited
his free expression under the First Amendment.
Gregory Lee Johnson was convicted of burning a flag.
That's an action.
It's not speech, is it?
So this is the dilemma the Supreme Court always faces
in free speech cases.
Is the state forbidding conduct
or forbidding expression?
Sometimes conduct can be expression.
Take dance or ballet, for example.
That's nothing but expression.
In that case, the Court calls it expressive conduct.
So what was Gregory Lee Johnson's action?
Was it expression or was it conduct?
The state of Texas had two arguments
to make in support of its law.
First, that what Gregory Lee Johnson did
was conduct, not speech.
The second argument that the state of Texas made
was that the purpose of the law
was to protect the symbolism of the flag.
Gregory Lee Johnson said his burning
of the flag was only a form of expression.
He was not convicted of, say,
setting a fire in an open area without a permit.
He was convicted of desecrating a venerated object.
That's a form of expression.
The First Amendment opens the door to all forms
of expression through whatever mode a person wants.
The Supreme Court, by a vote of five to four,
decided that burning the flag in protest was a form
of protected speech under the First Amendment.
Justice Brennan, after deciding
appropriately, it would seem,
that what Gregory Lee Johnson did was expressive conduct,
went down the list of what forms of speech
are allowed to be regulated by the government.
Was it obscenity? No.
Was it a face-to-face fighting word? No.
And was it simply offensive?
Indeed, it was offensive, but as Justice Brennan points out,
offensiveness is not a ground for suppressing speech.
So we have expressive conduct here
protected by the First Amendment.
Is it passing strict scrutiny?
Was there an imminence of a violence
and this could be called incitement?
No, the facts did not show that.
"What is the flag," Justice Brennan asked,
"if it is not itself an expressive symbol?"
The four dissenters spent many pages
describing the content of this expressive symbol,
why it was a kind of sacred object,
why it represented our country, its history, its heroes.
However, the dissent does bring up something
that's very central to our society,
and that is, we all need venerated objects.
The question is to what extent can the state go
to preserve venerated objects without impinging
on the right of free people to protest and to say
they object to what the venerated object represents.
Justice Brennan said the best antidote
to burning a flag is waving a flag.