[ Footnote 3 ] Although Johnson has raised a facial challenge to Texas' flag-desecration statute, we choose to resolve this case on the basis of his claim that the statute as applied to him violates the First Amendment. Section 42.09 regulates only physical conduct with respect to the flag, not the written or spoken word, and although one violates the statute only if one "knows" that one's physical treatment of the flag "will seriously offend one or more persons likely to observe or discover his action," Tex. Penal Code Ann. 42.09(b) (1989), this fact does not necessarily mean that the statute applies only to expressive conduct protected by the First Amendment. Cf. Smith v. Goguen, 415 U.S. 566, 588 (1974) (WHITE, J., concurring in judgment) (statute prohibiting "contemptuous" treatment of flag encompasses only expressive conduct). A tired person might, for example, drag a flag through the mud, knowing that this conduct is likely to offend others, and yet have no thought of expressing any idea; neither the language nor the Texas courts' interpretations of the statute precludes the possibility that such a person would be prosecuted for flag desecration. Because the prosecution of a person who had not engaged in expressive conduct would pose a different case, and because this case may be disposed of on narrower grounds, we address only Johnson's claim that 42.09 as applied to political expression like his violates the First Amendment.
[ Footnote 4 ] Relying on our decision in Boos v. Barry, 485 U.S. 312 (1988), Johnson argues that this state interest is related to the suppression of free expression within the meaning of United States v. O'Brien, 391 U.S. 367 (1968). He reasons that the violent reaction to flag burnings feared by [491 U.S. 397, 408] Texas would be the result of the message conveyed by them, and that this fact connects the State's interest to the suppression of expression. Brief for Respondent 12, n. 11. This view has found some favor in the lower courts. See Monroe v. State Court of Fulton County, 739 F.2d 568, 574-575 (CA11 1984). Johnson's theory may overread Boos insofar as it suggests that a desire to prevent a violent audience reaction is "related to expression" in the same way that a desire to prevent an audience from being offended is "related to expression." Because we find that the State's interest in preventing breaches of the peace is not implicated on these facts, however, we need not venture further into this area.
[ Footnote 5 ] There is, of course, a tension between this argument and the State's claim that one need not actually cause serious offense in order to violate 42.09. See Brief for Petitioner 44.
[ Footnote 6 ] Cf. Smith v. Goguen, 415 U.S., at 590 -591 (BLACKMUN, J., dissenting) (emphasizing that lower court appeared to have construed state statute so as to protect physical integrity of the flag in all circumstances); id., at 597-598 (REHNQUIST, J., dissenting) (same).
[ Footnote 7 ] Texas suggests that Johnson's conviction did not depend on the onlookers' reaction to the flag burning because 42.09 is violated only when a person physically mistreats the flag in a way that he "knows will seriously offend one or more persons likely to observe or discover his action." Tex. [491 U.S. 397, 412] Penal Code Ann. 42.09(b) (1989) (emphasis added). "The `serious offense' language of the statute," Texas argues, "refers to an individual's intent and to the manner in which the conduct is effectuated, not to the reaction of the crowd." Brief for Petitioner 44. If the statute were aimed only at the actor's intent and not at the communicative impact of his actions, however, there would be little reason for the law to be triggered only when an audience is "likely" to be present. At Johnson's trial, indeed, the State itself seems not to have seen the distinction between knowledge and actual communicative impact that it now stresses; it proved the element of knowledge by offering the testimony of persons who had in fact been seriously offended by Johnson's conduct. Id., at 6-7. In any event, we find the distinction between Texas' statute and one dependent on actual audience reaction too precious to be of constitutional significance. Both kinds of statutes clearly are aimed at protecting onlookers from being offended by the ideas expressed by the prohibited activity.
[ Footnote 8 ] Our inquiry is, of course, bounded by the particular facts of this case and by the statute under which Johnson was convicted. There was no evidence that Johnson himself stole the flag he burned, Tr. of Oral Arg. 17, nor did the prosecution or the arguments urged in support of it depend on [491 U.S. 397, 413] the theory that the flag was stolen. Ibid. Thus, our analysis does not rely on the way in which the flag was acquired, and nothing in our opinion should be taken to suggest that one is free to steal a flag so long as one later uses it to communicate an idea. We also emphasize that Johnson was prosecuted only for flag desecration - not for trespass, disorderly conduct, or arson.
[ Footnote 9 ] Texas claims that "Texas is not endorsing, protecting, avowing or prohibiting any particular philosophy." Brief for Petitioner 29. If Texas means to suggest that its asserted interest does not prefer Democrats over Socialists, or Republicans over Democrats, for example, then it is beside the point, for Johnson does not rely on such an argument. He argues instead that the State's desire to maintain the flag as a symbol of nationhood and national unity assumes that there is only one proper view of the flag. Thus, if Texas means to argue that its interest does not prefer any viewpoint over another, it is mistaken; surely one's attitude toward the flag and its referents is a viewpoint.
[ Footnote 10 ] Our decision in Halter v. Nebraska, 205 U.S. 34 (1907), addressing the validity of a state law prohibiting certain commercial uses of the flag, is not to the contrary. That case was decided "nearly 20 years before the Court concluded that the First Amendment applies to the States by virtue of the Fourteenth Amendment." Spence v. Washington, 418 U.S. 405, 413 , n. 7 (1974). More important, as we continually emphasized in Halter itself, that case involved purely commercial rather than political speech. 205 U.S., at 38 , 41, 42, 45.
Nor does San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 524 (1987), addressing the validity of Congress' decision to "authoriz[e] the United States Olympic Committee to prohibit [491 U.S. 397, 416] certain commercial and promotional uses of the word `Olympic,'" relied upon by THE CHIEF JUSTICE's dissent, post, at 429, even begin to tell us whether the government may criminally punish physical conduct towards the flag engaged in as a means of political protest.
[ Footnote 11 ] THE CHIEF JUSTICE'S dissent appears to believe that Johnson's conduct may be prohibited and, indeed, criminally sanctioned, because "his act . . . conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways." Post, at 431. Not only does this assertion sit uneasily next to the dissent's quite correct reminder that the flag occupies a unique position in our society - which demonstrates that messages conveyed without use of the flag are not "just as forcefu[l]" as those conveyed with it - but it also ignores the fact that, in Spence, supra, we "rejected summarily" this very claim. See 418 U.S., at 411 , n. 4.
JUSTICE KENNEDY, concurring.
I write not to qualify the words JUSTICE BRENNAN chooses so well, for he says with power all that is necessary to explain our ruling. I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks.
The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours.
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right [491 U.S. 397, 421] in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.
Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.
With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.
For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE and JUSTICE O'CONNOR join, dissenting.
In holding this Texas statute unconstitutional, the Court ignores Justice Holmes' familiar aphorism that "a page of history is worth a volume of logic." New York Trust Co. v. [491 U.S. 397, 422] Eisner, 256 U.S. 345, 349 (1921). For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here.
At the time of the American Revolution, the flag served to unify the Thirteen Colonies at home, while obtaining recognition of national sovereignty abroad. Ralph Waldo Emerson's "Concord Hymn" describes the first skirmishes of the Revolutionary War in these lines:
"By the rude bridge that arched the flood Their flag to April's breeze unfurled, Here once the embattled farmers stood And fired the shot heard round the world."
During that time, there were many colonial and regimental flags, adorned with such symbols as pine trees, beavers, anchors, and rattlesnakes, bearing slogans such as "Liberty or Death," "Hope," "An Appeal to Heaven," and "Don't Tread on Me." The first distinctive flag of the Colonies was the "Grand Union Flag" - with 13 stripes and a British flag in the left corner - which was flown for the first time on January 2, 1776, by troops of the Continental Army around Boston. By June 14, 1777, after we declared our independence from England, the Continental Congress resolved:
"That the flag of the thirteen United States be thirteen stripes, alternate red and white: that the union be thirteen stars, white in a blue field, representing a new constellation." 8 Journal of the Continental Congress 1774-1789, p. 464 (W. Ford ed. 1907).
One immediate result of the flag's adoption was that American vessels harassing British shipping sailed under an authorized national flag. Without such a flag, the British could treat captured seamen as pirates and hang them summarily; with a national flag, such seamen were treated as prisoners of war. [491 U.S. 397, 423]
During the War of 1812, British naval forces sailed up Chesapeake Bay and marched overland to sack and burn the city of Washington. They then sailed up the Patapsco River to invest the city of Baltimore, but to do so it was first necessary to reduce Fort McHenry in Baltimore Harbor. Francis Scott Key, a Washington lawyer, had been granted permission by the British to board one of their warships to negotiate the release of an American who had been taken prisoner. That night, waiting anxiously on the British ship, Key watched the British fleet firing on Fort McHenry. Finally, at daybreak, he saw the fort's American flag still flying; the British attack had failed. Intensely moved, he began to scribble on the back of an envelope the poem that became our national anthem:
"O say can you see by the dawn's early light What so proudly we hail'd at the twilight's last gleaming, Whose broad stripes & bright stars through the perilous fight O'er the ramparts we watch'd, were so gallantly streaming? And the rocket's red glare, the bomb bursting in air, Gave proof through the night that our flag was still there, O say does that star-spangled banner yet wave O'er the land of the free & the home of the brave?"
The American flag played a central role in our Nation's most tragic conflict, when the North fought against the South. The lowering of the American flag at Fort Sumter was viewed as the start of the war. G. Preble, History of the Flag of the United States of America 453 (1880). The Southern States, to formalize their separation from the Union, adopted the "Stars and Bars" of the Confederacy. The Union troops marched to the sound of "Yes We'll Rally Round The Flag Boys, We'll Rally Once Again." President Abraham Lincoln refused proposals to remove from the [491 U.S. 397, 424] American flag the stars representing the rebel States, because he considered the conflict not a war between two nations but an attack by 11 States against the National Government. Id., at 411. By war's end, the American flag again flew over "an indestructible union, composed of indestructible states." Texas v. White, 7 Wall. 700, 725 (1869).
One of the great stories of the Civil War is told in John Greenleaf Whittier's poem, "Barbara Frietchie":
"Up from the meadows rich with corn, Clear in the cool September morn, The clustered spires of Frederick stand Green-walled by the hills of Maryland. Round about them orchards sweep, Apple- and peach-tree fruited deep, Fair as a garden of the Lord To the eyes of the famished rebel horde, On that pleasant morn of the early fall When Lee marched over the mountain wall, - Over the mountains winding down, Horse and foot, into Frederick town. Forty flags with their silver stars, Forty flags with their crimson bars, Flapped in the morning wind: the sun Of noon looked down, and saw not one. Up rose old Barbara Frietchie then, Bowed with her fourscore years and ten; Bravest of all in Frederick town, She took up the flag the men hauled down; In her attic-window the staff she set, To show that one heart was loyal yet. Up the street came the rebel tread, Stonewall Jackson riding ahead. Under his slouched hat left and right He glanced: the old flag met his sight. `Halt!' - the dust-brown ranks stood fast. `Fire!' - out blazed the rifle-blast. [491 U.S. 397, 425] It shivered the window, pane and sash; It rent the banner with seam and gash. Quick, as it fell, from the broken staff Dame Barbara snatched the silken scarf; She leaned far out on the window-sill, And shook it forth with a royal will. `Shoot, if you must, this old gray head, But spare your country's flag,' she said. A shade of sadness, a blush of shame, Over the face of the leader came; The nobler nature within him stirred To life at that woman's deed and word: `Who touches a hair of yon gray head Dies like a dog! March on!' he said. All day long through Frederick street Sounded the tread of marching feet: All day long that free flag tost Over the heads of the rebel host. Ever its torn folds rose and fell On the loyal winds that loved it well; And through the hill-gaps sunset light Shone over it with a warm good-night. Barbara Frietchie's work is o'er, And the Rebel rides on his raids no more. Honor to her! and let a tear Fall, for her sake, on Stonewall's bier. Over Barbara Frietchie's grave, Flag of Freedom and Union, wave! Peace and order and beauty draw Round thy symbol of light and law; And ever the stars above look down On thy stars below in Frederick town!"
In the First and Second World Wars, thousands of our countrymen died on foreign soil fighting for the American cause. At Iwo Jima in the Second World War, United States Marines fought hand to hand against thousands of [491 U.S. 397, 426] Japanese. By the time the Marines reached the top of Mount Suribachi, they raised a piece of pipe upright and from one end fluttered a flag. That ascent had cost nearly 6,000 American lives. The Iwo Jima Memorial in Arlington National Cemetery memorializes that event. President Franklin Roosevelt authorized the use of the flag on labels, packages, cartons, and containers intended for export as lend-lease aid, in order to inform people in other countries of the United States' assistance. Presidential Proclamation No. 2605, 58 Stat. 1126.
During the Korean war, the successful amphibious landing of American troops at Inchon was marked by the raising of an American flag within an hour of the event. Impetus for the enactment of the Federal Flag Desecration Statute in 1967 came from the impact of flag burnings in the United States on troop morale in Vietnam. Representative L. Mendel Rivers, then Chairman of the House Armed Services Committee, testified that "[t]he burning of the flag . . . has caused my mail to increase 100 percent from the boys in Vietnam, writing me and asking me what is going on in America." Desecration of the Flag, Hearings on H. R. 271 before Sub-committee No. 4 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 189 (1967). Representative Charles Wiggins stated: "The public act of desecration of our flag tends to undermine the morale of American troops. That this finding is true can be attested by many Members who have received correspondence from servicemen expressing their shock and disgust of such conduct." 113 Cong. Rec. 16459 (1967).
The flag symbolizes the Nation in peace as well as in war. It signifies our national presence on battleships, airplanes, military installations, and public buildings from the United States Capitol to the thousands of county courthouses and city halls throughout the country. Two flags are prominently placed in our courtroom. Countless flags are placed by the graves of loved ones each year on what was first called [491 U.S. 397, 427] Decoration Day, and is now called Memorial Day. The flag is traditionally placed on the casket of deceased members of the Armed Forces, and it is later given to the deceased's family. 10 U.S.C. 1481, 1482. Congress has provided that the flag be flown at half-staff upon the death of the President, Vice President, and other government officials "as a mark of respect to their memory." 36 U.S.C. 175(m). The flag identifies United States merchant ships, 22 U.S.C. 454, and "[t]he laws of the Union protect our commerce wherever the flag of the country may float." United States v. Guthrie, 17 How. 284, 309 (1855).
No other American symbol has been as universally honored as the flag. In 1931, Congress declared "The Star-Spangled Banner" to be our national anthem. 36 U.S.C. 170. In 1949, Congress declared June 14th to be Flag Day. 157. In 1987, John Philip Sousa's "The Stars and Stripes Forever" was designated as the national march. Pub. L. 101-186, 101 Stat. 1286. Congress has also established "The Pledge of Allegiance to the Flag" and the manner of its deliverance. 36 U.S.C. 172. The flag has appeared as the principal symbol on approximately 33 United States postal stamps and in the design of at least 43 more, more times than any other symbol. United States Postal Service, Definitive Mint Set 15 (1988).
Both Congress and the States have enacted numerous laws regulating misuse of the American flag. Until 1967, Congress left the regulation of misuse of the flag up to the States. Now, however, 18 U.S.C. 700(a) provides that:
"Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both."
Congress has also prescribed, inter alia, detailed rules for the design of the flag, 4 U.S.C. 1, the time and occasion of flag's display, 36 U.S.C. 174, the position and manner of [491 U.S. 397, 428] its display, 175, respect for the flag, 176, and conduct during hoisting, lowering, and passing of the flag, 177. With the exception of Alaska and Wyoming, all of the States now have statutes prohibiting the burning of the flag. 1 Most of the state statutes are patterned after the Uniform Flag Act of 1917, which in 3 provides: "No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign or shield." Proceedings of National Conference of Commissioners on Uniform State Laws 323-324 (1917). Most were passed by the States at about the time of World War I. Rosenblatt, Flag Desecration Statutes: History and Analysis, 1972 Wash. U. L. Q. 193, 197. [491 U.S. 397, 429]
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 Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.
More than 80 years ago in Halter v. Nebraska, 205 U.S. 34 (1907), this Court upheld the constitutionality of a Nebraska statute that forbade the use of representations of the American flag for advertising purposes upon articles of merchandise. The Court there said:
"For that flag every true American has not simply an appreciation but a deep affection. . . . Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot." Id., at 41.
楼主
