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 Defining Freedom > Freedom of Speech > Answer to Question 3 Yes. Freedom of speech includes symbolic actions as well as words. But the flag you burn must be your own, and you cannot violate the fire codes. The flag burning issue has been debated numerous times in our history and continues today. Texas v. Johnson (1989) In 1984, Gregory Lee Johnson participated in a demonstration outside of the Republican National Convention in Dallas, Texas. Johnson burned an American flag outside of city hall and was arrested for violating a Texas statute which prohibits violating a venerated object. He was sentenced to a year in prison and fined $2,000. Johnson appealed his case, which eventually reached the Supreme Court. The Court ruled in a 5-4 decision, that burning a flag at a public demonstration is symbolic speech that is protected by the First Amendment. In the majority opinion, Justice Brennan wrote that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The Supreme Court’s decision overturned the federal statute and flag protection statutes in 47 states. U.S. v. Eichman (1990) Following the Supreme Court’s decision in Texas v. Johnson, Congress enacted the Flag Protection Act of 1989 which made it a crime to destroy an American flag. The government claimed the law was tied to protecting the physical integrity of the flag and had nothing to do with suppressing free speech. In a 5-4 decision, the Court rejected the government’s argument. The Court felt that the law’s language strongly pointed to the idea that burning a flag is disrespectful therefore the law is not content neutral. The justices in the majority opinion felt the government was trying to control treatment of the flag because of the possible expressive impact burning it could cause. U.S. v. O’Brien (1968) U.S. v. O’Brien helped establish a test for symbolic speech cases and was cited in the flag burning cases before the Supreme Court. David O’Brien burned his draft card outside of a courthouse in Boston to express his opposition to the war. He was arrested and convicted for violating a federal law that prohibited the mutilation or destruction of a draft card. The Court ruled in the government’s favor, finding that the law itself didn’t specifically restrict speech and addressed conduct that isn’t necessarily expressive. Instead of leaving it at that, the court decided to further address O’Brien’s First Amendment claim. From this case, the Court created a four-part test for symbolic speech that looks at whether a law directly relates to the content of speech and checks to see if it is narrowly tailored to meet the government’s interest. In order for a law to be constitutional, the court must ask these questions:
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