Retired Supreme Court justice Stevens finds no justice in flag-burning decision

The U.S. flag and the symbol of liberty it represents are too important not to be protected against those who would burn one in protest.

So said retired U.S. Supreme Court Justice John Paul Stevens on Friday at a swearing-in ceremony for Southern Nevada's newest attorneys, held at the Rio hotel and casino.

Stevens, 90, remains opposed to a 1989 Supreme Court decision that declared flag burning to be protected speech under the First Amendment. The landmark decision, Johnson v. Texas, rendered invalid laws against flag desecration on the books in 48 states.

Calling the five justices who formed the majority "judicial activists," Stevens said the history of the flag and what it means to most Americans afforded it special protection.

And there are limits on such protests.

"Wearing black armbands to protest the Vietnam War was protected," said Stevens. "Burning your draft card was not."

The genesis of the case took place during the Republican National Convention in 1984 in Dallas. Stevens said Johnson was one of about 100 protesters denouncing the administration of Ronald Reagan. At one point, a protester lifted a flag from its standard and handed it to Johnson, who doused the flag in kerosene and set it ablaze.

Gregory Johnson and many of the others were members of the Communist Youth Brigade, a group Stevens kindly characterized as "unpopular."

Stevens conceded the government can't ban such conduct simply because society might be offended, but because the flag, singularly, "is entitled to respect."

A member of the high court for 35 years, Stevens was appointed by President Gerald Ford in 1975. He served in naval intelligence during World War II.

"How much did burning the flag add to Johnson's message?" he said. "We all agreed Johnson and the others could not be punished for comments they made about Ronald Reagan, but the flag is an important symbol of liberty."

However, not all of the protesters' comments focused on the president.

As the flag burned, Stevens recounted, the protesters chanted, "America, the red, white and blue, we spit on you."

Those were fighting words. Much like yelling fire in a crowded theater that isn't actually on fire is not protected speech due to the harm it could cause, Stevens said the flag burning and chants certainly could have incited violence.

Citing the late Chief Justice William Rehnquist, who wrote the dissent, Stevens characterized flag burning as an "inarticulate roar designed to antagonize."

Stevens said he anticipated most Americans would react violently to flag burning more than they would mere "fighting words." But the majority, he said, "disagreed with the idea the flag is entitled to respect."

He argued -- in 1989 and again in 2010 -- that burning a flag is just as offensive as burning a cross to antagonize Christians or African-Americans, or desecrating a Quran to rile Muslims.

Those acts, in the narrow confines mentioned above, are illegal and not considered protected speech.

Stevens said the majority opinion written by William Brennan suggested, "The proper response to a flag burning is to wave one of your own or salute the one that's burning."

In his dissent, Stevens pointed out the value of the flag could be enhanced by not allowing it to be burned.

"In 1989, reasonable judges had different answers. Today, reasonable judges and citizens might still disagree, but it can't be solved by searching for the elusive meaning of the framers."

Contact Doug McMurdo at dmcmurdo@reviewjournal. com or 224-5512 or read more courts coverage at lvlegalnews.com.