It was a case involving the burning of another symbol, however, in which the Supreme Court announced the test it would use to analyze expressive conduct cases. Paul O'Brien's burning of his draft card led to his conviction for the "knowing destruction or mutilation" of a draft card. The Supreme Court, over only one dissent, affirmed O'Brien's conviction, but in so doing offered a test that would later be used to protect other protesters. Specifically, the Court said that a law regulating expressive conduct would be upheld only if it furthered an important governmental objective unrelated to the suppression of speech, was narrowly tailored to achieve the government's legitimate objective, and the law left open ample alternative means for expression. In O'Brien's case, the Court found the law to be narrowly tailored to its important objective of "smooth and efficient functioning of the selective service system." (Many commentators were critical of the Court's decision, arguing that the law was really an attempt to suppress a dramatic form of anti-war speech.)
Daniel Schact, who performed an anti-war skit at Houston's draft center while wearing a military uniform, had better luck in 1970 in reversing his conviction for wearing a military uniform in a production other than one that "does not tend to discredit that armed force." The Court found that the statute used to prosecute Schact made an impermissible content-based distinction and violated the First Amendment.
A few years later, Harold Spence, a young Seattle resident, was prosecuted under a state flag "improper use" law for hanging a flag in his apartment window with a peace symbol attached to it. The Court rejected the state's argument that promoting respect for the flag or preserving the flag as a symbol of the nation constituted important governmental interests unrelated to the suppression of speech, and reversed Spence's conviction.
Finally, the Court addressed the highly emotional issue of flag burning. In Texas vs Johnson, it reversed Gregory Johnson's conviction for burning an American flag during the 1984 Republican National Convention. The Court concluded that the flag burning was "speech" and again determined that the flag desecration statute was aimed at the communicative impact of Johnson's message. The Court noted, however, that speech-neutral laws, such as those applicable to public burning generally, might be constitutionally applied against flag burners. The next term the Court again confronted the flag burning issue, this time to consider the constitutionality of the Federal Flag Protection Act of 1989, passed by a Congress unhappy with the Court's decision in Johnson. The Court again ruled for the protester, a man who set fire to a flag on the steps of the U. S. Capitol, finding that the act was an attempt to suppress unpopular speech. The Court's decisions in the flag burning cases has led to numerous attempts to pass a constitutional amendment authorizing punishment of flag burning and mutilation, but so far the proposed amendment has fallen short of the two-thirds support necessary in the Senate.
U. S. vs O'Brien (1968)
Schact vs. U. S. (1970)
Spence vs. Washington (1974)
Texas vs Johnson (1989)
2. How substantial do you think the government's interest are in prohibiting the destruction of draft cards?
3. The Court notes that in the 1965 floor debates on the draft-card destruction law, only three members of Congress offered their reasons for supporting the legislation (all three noted draft-card burning demonstrations and were critical of those demonstrations). What if dozens, or even hundreds, of legislators indicated that they were supporting the legislation at least in part because of their unhappiness with anti-war demonstrations?
4. If the law provided no exception for theatrical productions that portrayed the military in a favorable light, could Schact have been constitutionally convicted under a statute prohibiting the wearing of military uniforms by non-military personnel?
5. Should the United States adopt an anti-flag burning amendment to the Constitution? Why or why not?
6. Why does burning of the flag seem to provoke such an emotional reaction in so many people? Could flag burning laws be justified as an attempt to prevent breaches of the peace? Why or why not?