Peter M. Tiersma
One of the more common ways in which people communicate by conduct is to destroy things, such as flags, draft cards, crosses, and other objects. The act of destruction is most often communicative if the object destroyed is symbolic (i.e., has conventional meaning). Consider, for example, the burning of a flag or an effigy of Uncle Sam, or toppling a statue of Lenin. Such displays can be dramatic and highly effective.
At the same time, the notion that destruction may be the equivalent of speech is troubling, because it suggests that some quite harmful activities may invoke the protection of the Free Speech Clause. After all, politically motivated rioting or a political assassination might also be described as symbolic destruction. As will be seen below, limiting “speech” to attempts to engage in deliberate communication greatly reduces the concern raised by Chief Justice Warren that “a limitless variety of conduct” can be labeled “speech.”1
In determining whether flag burning is communicative, we begin by exploring the meaning of the act itself. As noted above, the principal way in which conduct can mean something is by means of convention. It is obvious that the United States flag has a very conventional and powerful meaning as a symbol for the nation.2 Not only is the flag itself symbolic, but the act of burning likewise may convey meaning as a matter of convention. At least when intended to communicate, burning something is a symbolic act that signifies disapproval of the object that is burned, or what the object represents. For instance, if government officials round up copies of a book that they believe is evil and burn them in the town square, they may aim to destroy copies of the book so that it cannot further corrupt impressionable minds. But this could just as well be done by disposing of the books in a less dramatic fashion. Clearly, the public nature of the burning conveys potent disapproval of the book’s message. Likewise, a testator, by burning a will, may revoke it. Here again, the act of incineration signals disapproval of what the burned item represents.
Yet to establish that burning a flag has meaning is only the first half of the inquiry. In the vast majority of burnings, like disposing of trash, the actor does not intend to communicate at all. Nor does the fact that the burned item is a symbol with conventional meaning guarantee that incinerating it is intended to send a message: burning a flag while alone in one’s backyard in order to dispose of it is not an instance of communication. To be the equivalent of speech, an act must not only convey meaning, but the speaker or actor must intend to communicate. Whether the indicia of communication are present requires reference to the circumstances. We will thus examine this issue on the basis of the facts of the well-known case of Texas v. Johnson, [in which the Supreme Court overturned the conviction of a demonstrator who burned an American flag during a political protest in Texas].3
First, Johnson’s burning of the American flag was purely nonfunctional.4 The natural function of burning a flag is to dispose of it, which would normally not be done in a public place. Furthermore, the facts intimate that the flag was in perfectly good condition. This suggests that Johnson was not merely ridding himself of a soiled banner; people do not normally discard useful objects.
Just as significantly, Johnson burned the flag before an audience, not in the privacy of his backyard. Not only was the burning meant to be viewed by many people, but it was done in front of City Hall, a forum conducive to publicizing a political message and likely to attract the attention of an even greater audience through media coverage.5
Finally, Johnson’s action, as the Court recognized, took place in the communicative context of a demonstration against the Reagan administration. It also occurred against the more general backdrop of the Republican convention, which advocated many of the policies that the demonstrators opposed. The meaning of the act was further elaborated by the chant of the protestors while the flag was burning: “America, the red, white, and blue, we spit on you.”6
Weighing all these factors, there is no doubt that Johnson’s burning of the flag communicated a message. Indeed, even the dissenters recognized as much, arguing mainly that the importance of the flag as a national symbol justified a law against its desecration.7
The analysis of draft card burning in United States v. O’Brien8 is quite similar to flag burning. As in Johnson, O’Brien performed his act before an audience in front of the South Boston Courthouse and the communicative context—opposition to the Vietnam war and the draft—was quite clear. For several reasons, however, burning a draft card might be a bit less communicative than burning a flag. In Johnson there was no natural purpose—such as disposal—for burning the flag. Of course, O’Brien likewise did not need to rid himself of the draft card because it was worn or tattered. But O’Brien might arguably have wished to dispose of it, at least in part, to frustrate the efficient operation of the draft. This functional reason for burning the card largely dissipates on closer examination, however. If he simply wished to impede the draft, O’Brien did not need to burn the card publicly and risk imprisonment by drawing attention to it. In addition, the impact on the selective service caused by one person not having a draft card was minuscule. What would impede the smooth functioning of the draft was not O’Brien’s lack of a draft card, but his avowed refusal to be inducted into the military, and the fact that he urged others to follow in his footsteps.