Many people recoil at the notion that the First Amendment protects the speech that they most dislike or detest. The late great Nat Hentoff captured this censorial impulse in his “Free Speech for Me, But Not for Thee.”
But the reality is that the First Amendment protects much speech that is obnoxious, offensive and repugnant. Justice William Brennan captured this principle eloquently in his majority opinion in the flag-burning decision Texas v. Johnson (1989):
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
The case involved the protest activities of Gregory Lee Johnson, who burned an American flag in 1984 Dallas, Texas, the site of the Republican National Convention. While Johnson doused the flag with kerosene, others chanted, “America, red, white and blue, we spit on you.” Johnson and others protested the policies of the Reagan administration and a coming second term for the president.
Of all the protestors, authorities arrested only Johnson and charged him with violating a Texas flag desecration law. The court decided the case by the narrowest of margins, 5-4. Brennan emphasized that the state of Texas essentially was punishing Johnson for his dissident political views more than tarnishing a venerated object.
“The way to preserve the flag’s special role is not to punish those who feel differently about these matters,” Brennan wrote. “It is to persuade them they are wrong.”
In dissent, Chief Justice William Rehnquist analogized Johnson’s burning of the flag to fighting words. But, in this case, Brennan’s view prevailed.
A lasting legacy of Brennan’s opinion in Texas v. Johnson is his “bedrock principle” phrase, which has come to represent a cardinal principle of First Amendment law — that the First Amendment protects much offensive expression.
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).