What was the concurring opinion in the Texas v. Johnson case?

Texas v. Johnson carried two dissenting opinions, one authored by Chief Justice Rehnquist (and joined my Justices White and O'Connor), and one authored by Justice Stevens.

Chief Justice Rehnquist's dissent was largely an appeal to sentiment, focusing on the history and meaning of the American flag, as well as the values it represented.

In addressing Johnson's behavior, Rehnquist remarked that burning the flag was not essential to the exposition of ideas, and had a tendency to incite lawlessness. He suggested burning other symbols of government, including its leaders in effigy, would have been a more appropriate expression of disapproval. He also suggested flag burning was less a form of "expressive speech" than a "grunt and a roar."

The Chief Justice believed the government could legitimately create laws prohibiting flag desecration without violating First Amendment constitutional rights.

Justice Stevens' dissent was largely an appeal to logic, acknowledging the flag as a symbol of "nationhood and national unity," but declaring it also had an intangible value as a symbol that sent a message about the United States not only to those who cared about the country's national unity, but also to dissidents, both at home and abroad. He believed the government's interest in preserving the the flag's symbolic value for the future was both significant and legitimate.

Justice Stevens compared flag desecration to allowing people to spray graffiti on the Washington Monument, an act he was certain the government would not be challenged for prohibiting. According to Stevens, the majority was wrong in asserting the statutory prohibition of flag desecration placed any more than a trivial burden on free expression and that the law. Quoting from West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943), "[the Texas statute] does not prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by Word or act their faith therein." He also wrote: "The statute does not compel any conduct or any profession of respect for any idea or any symbol. Nor does the statute violate "the government's paramount obligation of neutrality in its regulation of protected communication."

Justice Stevens concluded: "The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for -- and our history demonstrates that they are - it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."

Case Citation:

Texas v. Johnson, 491 US 397 (1989)

For more information, see Related Questions, below.