Texas v. Johnson Majority Opinion
"We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry." What is the significance of Justice Brennan's reference to Fort McHenry?
Fort McHenry was a war of 1812 battle site in Baltimore. In 1814, poet Francis Scott Key, being held prisoner on a ship nearby, was elated to see the American flag flying there and wrote "The Star Spangled Banner" to celebrate this American victory over the British. The flag flying strengthened people's pride in the nation and similarly, the Court believes its ruling will increase people's pride in the principles the flag represents.
"National unity as an end which officials may foster by persuasion and examples is not in question. The problem is whether, under the Constitution, compulsion as her employed is a permissible means for its achievement." [Barnette, 319 U.S. at 540] How is this an example of Justice Brennan "citing textual evidence"?
In the Majority Opinion Justice Brennan cites a previous Court case that questioned whether the Constitution allows children to be forced to pledge allegiance to the flag.
"Indeed, Texas' argument that the burning of an American flag "is an act having a high likelihood to cause a breach of peace," and its statute's implicit assumption that physical mistreatment of the flag will lead to 'serious offense," tend to confirm that the flag's special role in not in danger; if it were, no one would riot or take offense because a flag had been burned." What is the relationship between Holmes's ideas and Justice Brennan's use in these lines?
Justice Brennan is citing evidence that applies Justice Holmes' previous ruling to the Texas v. Johnson case.
"It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag --and it is that resilience that we reassert today. The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong." What does Justice Brennan's repetition of the word resilience to refer to the nation suggest about his view of the Constitution?
Justice Brennan's repetition of the word resilience suggests that he sees the nation and the Constitution as strong because they are flexible.
Explain the compulsion regarding the flag in Texas v. Johnson.
Texas tried to force its citizens to treat the flag properly by banning the burning of the flag in protest.
"We are fortified in today's conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson's will not endanger the special role played by our flag or the feelings it inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown man will. change our Nation's attitude towards the flag [Abrams v. United States]." Here, Justice Brennan is referencing a previous freedom-of-speech case from 1919. What was Justice Holmes point?
That the government did not prove that the defendants' actions presented a danger to the nation.
"We decline, therefore, to create for the flag an exception to the joust of principles protected by the first Amendment..." In your own words, what is this opening sentence saying?
The Court will not say that our First Amendment rights are protected except when it comes to the treatment of the flag.
"To say that the government has an interest in encouraging proper treatment of the flag, however, in not to say that it may criminally punish a person for burning a flag as a means of political protest." Identify the phrase that indicates that the Court does not think encouraging proper treatment of the flag is the same as legally requiring proper treatment of the flag.
"is not to say"
