The Supreme Court decision in Texas v. Johnson was not unanimous. Four justices — White, O’Connor, Rehnquist, and Stevens — disagreed with the majority’s argument that the personal liberty interests of a person to use a flag to communicate a strong, political message outweigh any state interests in protecting the physical integrity of the flag in order to prevent it from becoming less respected and preserve its meaning for the majority of the population.
Writing for justices White and O’Connor, Chief Justice Rehnquist argued:
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[T]he public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace. ... [Johnson’s public burning of the flag] obviously did convey Johnson’s bitter dislike of his country. But his act ... conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways.
So, it’s OK to ban a person’s expression of ideas if those ideas can be expressed in other ways? It’s OK to ban a book if a person can speak the words instead? Rehnquist admits that the flag occupies a unique place in society, which means that alternative forms expression that don’t use the flag won’t have the same impact, significance, or meaning.
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Far from being a case of “one picture being worth a thousand words,” flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.
Grunts and howls do not inspire laws banning them, however. A person who grunts in public is looked at as being strange, but we don’t punish them for grunting instead of communicating in whole sentences. If people are antagonized by desecration of the American flag, it’s because of what they believe is being communicated by such acts.
In a separate dissent, Justice Stevens wrote:
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[O]ne intending to convey a message of respect for the flag by burning it in a public square might nonetheless be guilty of desecration if he knows that others - perhaps simply because they misperceive the intended message - will be seriously offended. Indeed, even if the actor knows that all possible witnesses will understand that he intends to send a message of respect, he might still be guilty of desecration if he also knows that this understanding does not lessen the offense taken by some of those witnesses.
This suggests that it’s permissible to regulate people’s speech based upon how others will interpret that speech. All of the laws against “desecrating” an American flag, even those which merely prohibit attaching an emblem to one, do so in the context of publicly displaying the altered flag. Doing it in private isn’t a crime; therefore, the harm to be prevented must be the “harm” of others witnessing what was done. It can’t be merely to prevent them from being offended, otherwise public discourse would be reduced to platitudes.
Instead, it must be to protect others from experiencing a radically different attitude towards and interpretation of the flag. Of course, it’s unlikely that someone would be prosecuted for desecrating a flag if only one or two random people are upset — no, that will be reserved for those who upset larger numbers of witnesses. In other words, the wishes of the majority to not be confronted with something too far outside their normal expectations can limit what sorts of ideas are expressed (and in what way) by the minority.
This principle is completely foreign to constitutional law and even to the basic principles of liberty, as was eloquently stated the following year in the Supreme Court’s follow-up case of United States v. Eichman:
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While flag desecration - like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures - is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
If freedom of expression is to have any real substance, it must cover the freedom to express ideas that are uncomfortable, offensive, and disagreeable. That’s precisely what burning, defacing, or desecrating an American flag often does — and the same is true with defacing or desecrating other objects which are commonly revered. The government has no authority to limit people’s uses of such object to communicate only approved, moderate, and inoffensive messages.
