Today in 1989: SCOTUS upholds flag-burning as protected speech under the First Amendment

June 21, 2013

Today in Legal HistoryYesterday, I wrote about the Supreme Court’s recent Maracich v. Spears decision, taking particular note of Justice Scalia’s siding with the Court’s three female justices in dissenting.

This occurrence is significant because the Court’s three female justices – Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – are among the most liberal of the current bench, while Justice Scalia is easily one of the most conservative.

Yesterday’s post further observed, however, that this isn’t an uncommon event as of late: Scalia has sided with his liberal colleagues in divided opinions several times during this term.

The reason for this divergence, at least in regards to the Maracich decision, is Scalia’s unique judicial philosophies that distinguish him from his fellow conservatives on the Court.  In Maracich, Scalia’s textualist beliefs – that statutory interpretation should be guided by the statute’s “ordinary meaning” – led to his breaking from his fellow conservatives (more on that in the post referenced above).

Just because this has been happening recently doesn’t mean that this is simply a recent occurrence.

Quite the opposite: Justice Scalia has been siding with the liberal bloc of the Court when his judicial philosophies demanded it for nearly has long as he’s been on the Supreme Court.

Perhaps no case illustrates this point any better than Texas v. Johnson, decided 24 years ago today, on June 21, 1989.

The five to four ruling was very controversial at the time and remains so today: Johnson upheld the burning of the American flag as a form a speech protected by the Constitution’s First Amendment.

With less than three years’ tenure on the Court, Scalia joined in the Johnson majority opinion with some of the most liberal justices to have sat on the Court in the past 70 years: Justices William Brennan and Thurgood Marshall.

What’s more, counted among the dissenters were not only steadfast conservatives like Chief Justice William Rehnquist and Justice Byron White, but also none other than Justice John Paul Stevens, who, upon retiring in 2010, was widely considered the most liberal justice on the Supreme Court.

Scalia’s reasons for joining the majority are likely quite related to those in Maracich: his unique judicial philosophies.

Rather than that philosophy being only textualism, Scalia’s motivations were also likely rooted in originalism, an associated viewpoint that attempts to interpret the Constitution based on what it meant at the time of its ratification.

According to the Johnson majority, a plain reading of the Constitution led them to their conclusion.

There was no dispute between parties that the flag-burning at issue – conducted by an individual (Gregory Lee Johnson) as part of a political demonstration during the 1984 Republican National Convention – was, indeed, expressive conduct – and of an “overtly political nature” at that.

Thus, the First Amendment clearly applied to Johnson’s conduct, leaving the Court with the sole question of whether the state’s interest in preventing the American flag from being desecrated was stronger than Johnson’s First Amendment right to protected political expression.

Despite the dissenters’ persistent arguments that a unique exception to First Amendment free speech protections should apply to protecting the flag, the majority wasn’t convinced.

Rather, the majority noted that there was “no indication – either in the text of the Constitution or in our cases interpreting it – that a separate juridical category exists for the American flag alone.”

The majority even noted that they “would not be surprised to learn” that the framers of the Constitution and its First Amendment “were not known for their reverence for the Union Jack.”

As such, the majority concluded that to create such an exception would be “to the joust of principles protected by the First Amendment.”

With that 24 year old decision, Scalia, guided by his own judicial principles, joined with some of his most liberal colleagues on the bench in a position that conflicts with much of mainstream conservative views in America.

And if some of this term’s decisions are of any indication, Scalia hasn’t abandoned this practice.