Newsgroup: it.politica.internazionale
Titolo: Demonstrators mock Bush, burn flag

At least 10 arrested during ceremonies  
http://www.courier-journal.com/localnews/2005/01/21ky/A7-protest0121-4359.html

 At least 10 arrested during ceremonies
Peccato. Dovevano arrestarne di piu'.  Specialmente chi bruciava la
bandiera.
-Stefano


Ciapa in culo e porta a casa.
http://www.ernestmorgan.com/amgov/essay4/brennan.html
TEXAS v. JOHNSON
No. 88-155
SUPREME COURT OF THE UNITED STATES
491 U.S. 397; 109 S. Ct. 2533; 1989 U.S. LEXIS 3115; 105 L.
Ed. 2d 342; 57 U.S.L.W. 4770
June 21, 1989, Decided
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS.
DISPOSITION: 755 S. W. 2d 92, affirmed.
DECISION: Conviction of protester for burning American flag as part of
political demonstration held to violate Federal Constitution's First
Amendment.
JUDGES: Brennan, J., delivered the opinion of the Court, in which
Marshall, Blackmun, Scalia, and Kennedy, JJ., joined. Kennedy, J.,
filed a concurring opinion, post, p. 420. Rehnquist, C. J., filed a
dissenting opinion, in which White and O'Connor, JJ., joined, post,
p. 421. Stevens, J., filed a dissenting opinion, post, p. 436.
OPINION BY: BRENNAN
OPINION: [*399]
[**2536] JUSTICE BRENNAN delivered the opinion of the Court. After
publicly burning an American flag as a means of political protest,
Gregory Lee Johnson was convicted of desecrating a flag in violation of
Texas law. This case presents the question whether his conviction is
consistent with the First Amendment. We hold that it is not.
I
While the Republican National Convention was taking place in Dallas in
1984, respondent Johnson participated in a political demonstration
dubbed the "Republican War Chest Tour." As explained in literature
distributed by the demonstrators and [**2537] in speeches made by them,
the purpose of this event was to protest the policies of the Reagan
administration and of certain Dallas-based corporations. The
demonstrators marched through the Dallas streets, chanting political
slogans and stopping at several corporate locations [***6] to stage
"die-ins" intended to dramatize the consequences of nuclear war. On
several occasions they spray-painted the walls of buildings and
overturned potted plants, but Johnson himself took no part in such
activities. He did, however, accept an American flag handed to him by a
fellow protestor who had taken it from a flagpole outside one of the
targeted buildings.
The demonstration ended in front of Dallas City Hall, where Johnson
unfurled the American flag, doused it with kerosene, and set it on
fire. While the flag burned, the protestors chanted: "America, the
red, white, and blue, we spit on you." After the demonstrators
dispersed, a witness to the flag burning collected the flag's remains
and buried them in his backyard. No one was physically injured or
threatened with injury, though several witnesses testified that they
had been seriously offended by the flag burning.
[*400] Of the approximately 100 demonstrators, Johnson alone was
charged with a crime. The only criminal offense with which he was
charged was the desecration of a venerated object in violation of Tex.
Penal Code Ann. § 42.09(a)(3) (1989). n1 After a trial, he was
convicted, sentenced to one year in prison, [***7] and fined $2,000.
The Court of Appeals for the Fifth District of Texas at Dallas affirmed
Johnson's conviction, 706 S. W. 2d 120 (1986), but the Texas Court of
Criminal Appeals reversed, 755 S. W. 2d 92 (1988), holding that the
State could not, consistent with the First Amendment, punish Johnson
for burning the flag in these circumstances.
n1 Texas Penal Code Ann. § 42.09 (1989) provides in full:
"§ 42.09. Desecration of Venerated Object
"(a) A person commits an offense if he intentionally or
knowingly desecrates:
"(1) a public monument;
"(2) a place of worship or burial; or
"(3) a state or national flag.
"(b) For purposes of this section, 'desecrate' means deface,
damage, or otherwise physically mistreat in a way that the actor knows
will seriously offend one or more persons likely to observe or discover
his action.
"(c) An offense under this section is a Class A misdemeanor."
The Court of Criminal Appeals began by recognizing that Johnson's
conduct [***8] was symbolic speech protected by the First Amendment:
"Given the context of an organized demonstration, speeches, slogans,
and the distribution of literature, anyone who observed appellant's
act would have understood the message that appellant intended to
convey. The act for which appellant was convicted was clearly
'speech' contemplated by the First Amendment." Id., at 95. To
justify Johnson's conviction for engaging in symbolic speech, the
State asserted two interests: preserving the flag as a symbol of
national unity and preventing breaches of the peace. The Court of
Criminal Appeals held that neither interest supported his conviction.
[*401] Acknowledging that this Court had not yet decided whether the
Government may criminally sanction flag desecration in order to
preserve the flag's symbolic value, the Texas court nevertheless
concluded that our decision in West Virginia Board of Education v.
Barnette, 319 U.S. 624 (1943), suggested that furthering this interest
by curtailing speech was impermissible. "Recognizing that the right
to differ is the centerpiece of our First Amendment freedoms," the
court explained, [***9] "a government cannot mandate by fiat a
feeling of unity in its citizens. Therefore, that very same government
cannot carve out a symbol of unity and prescribe a set of approved
messages to be associated with that symbol when it cannot mandate the
status or feeling the symbol [**2538] purports to represent." 755 S.
W. 2d, at 97. Noting that the State had not shown that the flag was in
"grave and immediate danger," Barnette, supra, at 639, of being
stripped of its symbolic value, the Texas court also decided that the
flag's special status was not endangered by Johnson's conduct. 755
S. W. 2d, at 97.
As to the State's goal of preventing breaches of the peace, the court
concluded that the flag-desecration statute was not drawn narrowly
enough to encompass only those flag burnings that were likely to result
in a serious disturbance of the peace. And in fact, the court
emphasized, the flag burning in this particular case did not threaten
such a reaction. "'Serious offense' occurred," the court
admitted, "but there was no breach of peace nor does the record
reflect that the situation was potentially explosive. [***10] One
cannot equate 'serious offense' with incitement to breach the
peace." Id., at 96. The court also stressed that another Texas
statute, Tex. Penal Code Ann. § 42.01 (1989), prohibited breaches of
the peace. Citing Boos v. Barry, 485 U.S. 312 (1988), the court decided
that § 42.01 demonstrated Texas' ability to prevent disturbances of
the peace without punishing this flag desecration. 755 S. W. 2d, at 96.
[*402] Because it reversed Johnson's conviction on the ground that §
42.09 was unconstitutional as applied to him, the state court did not
address Johnson's argument that the statute was, on its face,
unconstitutionally vague and overbroad. We granted certiorari, 488 U.S.
907 (1988), and now affirm.
II Johnson was convicted of flag desecration for burning the flag
rather than for uttering insulting words. n2 This fact [*403] somewhat
complicates our consideration of his conviction under the First
Amendment. We must first determine whether Johnson's burning of the
flag constituted expressive conduct, permitting him to invoke the First
Amendment [***11] in challenging his conviction. See, e. g., Spence v.
Washington, 418 U.S. 405, 409-411 (1974). If [**2539] his conduct was
expressive, we next decide whether the State's regulation is related
to the suppression of free expression. See, e. g., United States v.
O'Brien, 391 U.S. 367, 377 (1968); Spence, supra, at 414, n. 8. If
the State's regulation is not related to expression, then the less
stringent standard we announced in United States v. O'Brien for
regulations of noncommunicative conduct controls. See O'Brien, supra,
at 377. If it is, then we are outside of O'Brien's test, and we
must ask whether this interest justifies Johnson's conviction under a
more demanding standard. n3 See Spence, supra, at 411. A [*404] third
possibility is that the State's asserted interest is simply not
implicated on these facts, and in that event the interest drops out of
the picture. See 418 U.S., at 414, n. 8.
n2 Because the prosecutor's closing argument observed that Johnson
had led the protestors in chants denouncing the flag while it burned,
Johnson suggests that he may have been convicted for uttering critical
words rather than for burning the flag. Brief for Respondent 33-34. He
relies on Street v. New York, 394 U.S. 576, 578 (1969), in which we
reversed a conviction obtained under a New York statute that prohibited
publicly defying or casting contempt on the flag "either by words or
act" because we were persuaded that the defendant may have been
convicted for his words alone. Unlike the law we faced in Street,
however, the Texas flag-desecration statute does not on its face permit
conviction for remarks critical of the flag, as Johnson himself admits.
See Brief for Respondent 34. Nor was the jury in this case told that it
could convict Johnson of flag desecration if it found only that he had
uttered words critical of the flag and its referents.
Johnson emphasizes, though, that the jury was instructed-according to
Texas' law of parties-that "'a person is criminally responsible
for an offense committed by the conduct of another if acting with
intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to
commit the offense.'" Id., at 2, n. 2, quoting 1 Record 49. The
State offered this instruction because Johnson's defense was that he
was not the person who had burned the flag. Johnson did not object to
this instruction at trial, and although he challenged it on direct
appeal, he did so only on the ground that there was insufficient
evidence to support it. 706 S. W. 2d 120, 124 (Tex. App. 1986). It is
only in this Court that Johnson has argued that the law-of-parties
instruction might have led the jury to convict him for his words alone.
Even if we were to find that this argument is properly raised here,
however, we would conclude that it has no merit in these circumstances.
The instruction would not have permitted a conviction merely for the
pejorative nature of Johnson's words, and those words themselves did
not encourage the burning of the flag as the instruction seems to
require. Given the additional fact that "the bulk of the State's
argument was premised on Johnson's culpability as a sole actor,"
ibid., we find it too unlikely that the jury convicted Johnson on the
basis of this alternative theory to consider reversing his conviction
on this ground.
[***12]
n3 Although Johnson has raised a facial challenge to Texas'
flag-desecration statute, we choose to resolve this case on the basis
of his claim that the statute as applied to him violates the First
Amendment. Section 42.09 regulates only physical conduct with respect
to the flag, not the written or spoken word, and although one violates
the statute only if one "knows" that one's physical treatment of
the flag "will seriously offend one or more persons likely to observe
or discover his action," Tex. Penal Code Ann. § 42.09(b) (1989),
this fact does not necessarily mean that the statute applies only to
expressive conduct protected by the First Amendment. Cf. Smith v.
Goguen, 415 U.S. 566, 588 (1974) (White, J., concurring in judgment)
(statute prohibiting "contemptuous" treatment of flag encompasses
only expressive conduct). A tired person might, for example, drag a
flag through the mud, knowing that this conduct is likely to offend
others, and yet have no thought of expressing any idea; neither the
language nor the Texas courts' interpretations of the statute
precludes the possibility that such a person would be prosecuted for
flag desecration. Because the prosecution of a person who had not
engaged in expressive conduct would pose a different case, and because
this case may be disposed of on narrower grounds, we address only
Johnson's claim that § 42.09 as applied to political expression like
his violates the First Amendment.
[***13]
The First Amendment literally forbids the abridgment only of
"speech," but we have long recognized that its protection does not
end at the spoken or written word. While we have rejected "the view
that an apparently limitless variety of conduct can be labeled
'speech' whenever the person engaging in the conduct intends
thereby to express an idea," United States v. O'Brien, supra, at
376, we have acknowledged that conduct may be "sufficiently imbued
with elements of communication to fall within the scope of the First
and Fourteenth Amendments," Spence, supra, at 409.
In deciding whether particular conduct possesses sufficient
communicative elements to bring the First Amendment into play, we have
asked whether "[a]n intent to convey a particularized message was
present, and [whether] the likelihood was great that the message would
be understood by those who viewed it." 418 U.S., at 410-411. Hence,
we have recognized the expressive nature of students' wearing of
black armbands to protest American military involvement in Vietnam,
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503,
505 (1969); [***14] of a sit-in by blacks in a "whites only" area
to protest segregation, Brown v. Louisiana, 383 U.S. 131, 141-142
(1966); of the wearing of American military uniforms in a dramatic
presentation criticizing American involvement in Vietnam, Schacht v.
United States, 398 U.S. 58 (1970); and of picketing about a wide
variety of causes, see, e. g., Food Employees v. Logan Valley Plaza,
Inc., 391 U.S. 308, 313-314 (1968); United States v. Grace, 461 U.S.
171, 176 (1983).
Especially pertinent to this case are our decisions recognizing the
communicative [**2540] nature of conduct relating to flags. Attaching a
peace sign to the flag, Spence, supra, at 409-410; refusing to salute
the flag, Barnette, 319 U.S., at 632; and displaying a red flag,
Stromberg v. California, 283 U.S. 359, 368-369 [*405] (1931), we have
held, all may find shelter under the First Amendment. See also Smith v.
Goguen, 415 U.S. 566, 588 (1974) (White, [***15] J., concurring in
judgment) (treating flag "contemptuously" by wearing pants with
small flag sewn into their seat is expressive conduct). That we have
had little difficulty identifying an expressive element in conduct
relating to flags should not be surprising. The very purpose of a
national flag is to serve as a symbol of our country; it is, one might
say, "the one visible manifestation of two hundred years of
nationhood." Id., at 603 (Rehnquist, J., dissenting). Thus, we have
observed: "[T]he flag salute is a form of utterance. Symbolism is a
primitive but effective way of communicating ideas. The use of an
emblem or flag to symbolize some system, idea, institution, or
personality, is a short cut from mind to mind. Causes and nations,
political parties, lodges and ecclesiastical groups seek to knit the
loyalty of their followings to a flag or banner, a color or design."
Barnette, supra, at 632. Pregnant with expressive content, the flag as
readily signifies this Nation as does the combination of letters found
in "America."
We have not automatically concluded, however, that any action taken
with respect to [***16] our flag is expressive. Instead, in
characterizing such action for First Amendment purposes, we have
considered the context in which it occurred. In Spence, for example, we
emphasized that Spence's taping of a peace sign to his flag was
"roughly simultaneous with and concededly triggered by the Cambodian
incursion and the Kent State tragedy." 418 U.S., at 410. The State of
Washington had conceded, in fact, that Spence's conduct was a form of
communication, and we stated that "the State's concession is
inevitable on this record." Id., at 409. The State of Texas conceded
for purposes of its oral argument in this case that Johnson's conduct
was expressive conduct, Tr. of Oral Arg. 4, and this concession seems
to us as [*406] prudent as was Washington's in Spence. Johnson burned
an American flag as part-indeed, as the culmination-of a political
demonstration that coincided with the convening of the Republican Party
and its renomination of Ronald Reagan for President. The expressive,
overtly political nature of this conduct was both intentional and
overwhelmingly apparent. At his trial, Johnson explained his [***17]
reasons for burning the flag as follows: "The American Flag was
burned as Ronald Reagan was being renominated as President. And a more
powerful statement of symbolic speech, whether you agree with it or
not, couldn't have been made at that time. It's quite a just
position [juxtaposition]. We had new patriotism and no patriotism." 5
Record 656. In these circumstances, Johnson's burning of the flag was
conduct "sufficiently imbued with elements of communication,"
Spence, 418 U.S., at 409, to implicate the First Amendment.
III The government generally has a freer hand in restricting expressive
conduct than it has in restricting the written or spoken word. See
O'Brien, 391 U.S. at 376-377; Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293 (1984); Dallas v. Stanglin, 490 U.S.
19, 25 (1989). It may not, however, proscribe particular conduct
because it has expressive elements. "[W]hat might be [**2541] termed
the more generalized guarantee of freedom of expression makes the
communicative nature of conduct an inadequate basis for [***18]
singling out that conduct for proscription. A law directed at the
communicative nature of conduct must, like a law directed at speech
itself, be justified by the substantial showing of need that the First
Amendment requires." Community for Creative Non-Violence v. Watt, 227
U. S. App. D. C. 19, 55-56, 703 F. 2d 586, 622-623 (1983) (Scalia, J.,
dissenting) (emphasis in original), rev'd sub nom. Clark v. Community
for Creative Non-Violence, supra. It is, in short, not simply the
verbal or nonverbal nature of the expression, but the governmental
[*407] interest at stake, that helps to determine whether a restriction
on that expression is valid.
Thus, although we have recognized that where "'speech' and
'nonspeech' elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the
nonspeech element can justify incidental limitations on First Amendment
freedoms," O'Brien, supra, at 376, we have limited the
applicability of O'Brien's relatively lenient standard to those
cases in which "the governmental interest [***19] is unrelated to the
suppression of free expression." Id., at 377; see also Spence, supra,
at 414, n. 8. In stating, moreover, that O'Brien's test "in the
last analysis is little, if any, different from the standard applied to
time, place, or manner restrictions," Clark, supra, at 298, we have
highlighted the requirement that the governmental interest in question
be unconnected to expression in order to come under O'Brien's less
demanding rule. In order to decide whether O'Brien's test applies
here, therefore, we must decide whether Texas has asserted an interest
in support of Johnson's conviction that is unrelated to the
suppression of expression. If we find that an interest asserted by the
State is simply not implicated on the facts before us, we need not ask
whether O'Brien's test applies. See Spence, supra, at 414, n. 8.
The State offers two separate interests to justify this conviction:
preventing breaches of the peace and preserving the flag as a symbol of
nationhood and national unity. We hold that the first interest is not
implicated [***20] on this record and that the second is related to the
suppression of expression.
A Texas claims that its interest in preventing breaches of the peace
justifies Johnson's conviction for flag desecration. n4 [*408]
However, no disturbance of the peace actually occurred or threatened to
occur because of Johnson's burning of the flag. Although the State
stresses the disruptive behavior of the protestors during their march
toward City Hall, Brief for Petitioner 34-36, it admits that "no
actual breach of the peace occurred at the time of the flagburning or
in response to the flagburning." Id., at 34. The State's emphasis
on the protestors' disorderly actions prior to arriving at City Hall
is not only somewhat [**2542] surprising given that no charges were
brought on the basis of this conduct, but it also fails to show that a
disturbance of the peace was a likely reaction to Johnson's conduct.
The only evidence offered by the State at trial to show the reaction to
Johnson's actions was the testimony of several persons who had been
seriously offended by the flag burning. Id., at 6-7.
n4 Relying on our decision in Boos v. Barry, 485 U.S. 312 (1988),
Johnson argues that this state interest is related to the suppression
of free expression within the meaning of United States v. O'Brien,
391 U.S. 367 (1968). He reasons that the violent reaction to flag
burnings feared by Texas would be the result of the message conveyed by
them, and that this fact connects the State's interest to the
suppression of expression. Brief for Respondent 12, n. 11. This view
has found some favor in the lower courts. See Monroe v. State Court of
Fulton County, 739 F. 2d 568, 574-575 (CA11 1984). Johnson's theory
may overread Boos insofar as it suggests that a desire to prevent a
violent audience reaction is "related to expression" in the same
way that a desire to prevent an audience from being offended is
"related to expression." Because we find that the State's
interest in preventing breaches of the peace is not implicated on these
facts, however, we need not venture further into this area.
[***21]
The State's position, therefore, amounts to a claim that an audience
that takes serious offense at particular expression is necessarily
likely to disturb the peace and that the expression may be prohibited
on this basis. n5 Our precedents do not countenance such a presumption.
On the contrary, they recognize that a principal "function of free
speech under our system of government is to invite dispute. It may
indeed best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are, or [*409]
even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4
(1949). See also Cox v. Louisiana, 379 U.S. 536, 551 (1965); Tinker v.
Des Moines Independent Community School Dist. 393 U.S., at 508-509;
Coates v. Cincinnati, 402 U.S. 611, 615 (1971); Hustler Magazine, Inc.
v. Falwell, 485 U.S. 46, 55-56 (1988). It would be odd indeed to
conclude both that "if it is the speaker's opinion that gives
offense, that consequence is a reason for according it constitutional
[***22] protection," FCC v. Pacifica Foundation, 438 U.S. 726, 745
(1978) (opinion of Stevens, J.), and that the government may ban the
expression of certain disagreeable ideas on the unsupported presumption
that their very disagreeableness will provoke violence.
n5 There is, of course, a tension between this argument and the
State's claim that one need not actually cause serious offense in
order to violate § 42.09. See Brief for Petitioner 44.
Thus, we have not permitted the government to assume that every
expression of a provocative idea will incite a riot, but have instead
required careful consideration of the actual circumstances surrounding
such expression, asking whether the expression "is directed to
inciting or producing imminent lawless action and is likely to incite
or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447
(1969) (reviewing circumstances surrounding rally and speeches by Ku
Klux Klan). To accept Texas' arguments [***23] that it need only
demonstrate "the potential for a breach of the peace," Brief for
Petitioner 37, and that every flag burning necessarily possesses that
potential, would be to eviscerate our holding in Brandenburg. This we
decline to do.
Nor does Johnson's expressive conduct fall within that small class of
"fighting words" that are "likely to provoke the average person
to retaliation, and thereby cause a breach of the peace." Chaplinsky
v. New Hampshire, 315 U.S. 568, 574 (1942). No reasonable onlooker
would have regarded Johnson's generalized expression of
dissatisfaction with the policies of the Federal Government as a direct
personal insult or an invitation to exchange fisticuffs. See id., at
572-573; Cantwell v. Connecticut, 310 U.S. 296, 309 (1940); FCC v.
Pacifica Foundation, supra, at 745 (opinion of Stevens, J.).
[*410] We thus conclude that the State's interest in maintaining
order is not implicated on these facts. The State need not worry that
our holding will disable it from preserving the peace. We do not
suggest that the First [***24] Amendment forbids a State to prevent
"imminent lawless action." Brandenburg, supra, at 447. And, in
fact, Texas already has a statute specifically prohibiting breaches of
the peace, Tex. Penal Code Ann. § 42.01 (1989), which tends to confirm
that Texas need not punish this flag desecration in order to keep the
peace. See Boos v. Barry, [**2543] 485 U.S., at 327-329.
B
The State also asserts an interest in preserving the flag as a symbol
of nationhood and national unity. In Spence, we acknowledged that the
government's interest in preserving the flag's special symbolic
value "is directly related to expression in the context of
activity" such as affixing a peace symbol to a flag. 418 U.S., at
414, n. 8. We are equally persuaded that this interest is related to
expression in the case of Johnson's burning of the flag. The State,
apparently, is concerned that such conduct will lead people to believe
either that the flag does not stand for nationhood and national unity,
but instead reflects other, less positive concepts, or that the
concepts reflected in the flag do not in fact exist, that is, [***25]
that we do not enjoy unity as a Nation. These concerns blossom only
when a person's treatment of the flag communicates some message, and
thus are related "to the suppression of free expression" within the
meaning of O'Brien. We are thus outside of O'Brien's test
altogether.
IV
It remains to consider whether the State's interest in preserving the
flag as a symbol of nationhood and national unity justifies Johnson's
conviction. As in Spence, "[w]e are confronted with a case of
prosecution for the expression of an idea through activity," and
"[a]ccordingly, we must examine with particular care the interests
[*411] advanced by [petitioner] to support its prosecution." 418
U.S., at 411. Johnson was not, we add, prosecuted for the expression of
just any idea; he was prosecuted for his expression of dissatisfaction
with the policies of this country, expression situated at the core of
our First Amendment values. See, e. g., Boos v. Barry, supra, at 318;
Frisby v. Schultz, 487 U.S. 474, 479 (1988).
Moreover, Johnson was prosecuted because he knew that his politically
[***26] charged expression would cause "serious offense." If he had
burned the flag as a means of disposing of it because it was dirty or
torn, he would not have been convicted of flag desecration under this
Texas law: federal law designates burning as the preferred means of
disposing of a flag "when it is in such condition that it is no
longer a fitting emblem for display," 36 U. S. C. § 176(k), and
Texas has no quarrel with this means of disposal. Brief for Petitioner
45. The Texas law is thus not aimed at protecting the physical
integrity of the flag in all circumstances, but is designed instead to
protect it only against impairments that would cause serious offense to
others. n6 Texas concedes as much: "Section 42.09(b) reaches only
those severe acts of physical abuse of the flag carried out in a way
likely to be offensive. The statute mandates intentional or knowing
abuse, that is, the kind of mistreatment that is not innocent, but
rather is intentionally designed to seriously offend other
individuals." Id., at 44.
n6 Cf. Smith v. Goguen, 415 U.S., at 590-591 (Blackmun, J., dissenting)
(emphasizing that lower court appeared to have construed state statute
so as to protect physical integrity of the flag in all circumstances);
id., at 597-598 (Rehnquist, J., dissenting) (same).
[***27] Whether Johnson's treatment of the flag violated Texas law
thus depended on the likely communicative impact of his expressive
conduct. n7 Our decision in Boos v. Barry, [**2544] supra, [*412] tells
us that this restriction on Johnson's expression is content based. In
Boos, we considered the constitutionality of a law prohibiting "the
display of any sign within 500 feet of a foreign embassy if that sign
tends to bring that foreign government into 'public odium' or
'public disrepute.'" Id., at 315. Rejecting the argument that the
law was content neutral because it was justified by "our
international law obligation to shield diplomats from speech that
offends their dignity," id., at 320, we held that "[t]he emotive
impact of speech on its audience is not a 'secondary effect'"
unrelated to the content of the expression itself. Id., at 321
(plurality opinion); see also id., at 334 (Brennan, J., concurring in
part and concurring in judgment).
n7 Texas suggests that Johnson's conviction did not depend on the
onlookers' reaction to the flag burning because § 42.09 is violated
only when a person physically mistreats the flag in a way that he
"knows will seriously offend one or more persons likely to observe or
discover his action." Tex. Penal Code Ann. § 42.09(b) (1989)
(emphasis added). "The 'serious offense' language of the
statute," Texas argues, "refers to an individual's intent and to
the manner in which the conduct is effectuated, not to the reaction of
the crowd." Brief for Petitioner 44. If the statute were aimed only
at the actor's intent and not at the communicative impact of his
actions, however, there would be little reason for the law to be
triggered only when an audience is "likely" to be present. At
Johnson's trial, indeed, the State itself seems not to have seen the
distinction between knowledge and actual communicative impact that it
now stresses; it proved the element of knowledge by offering the
testimony of persons who had in fact been seriously offended by
Johnson's conduct. Id., at 6-7. In any event, we find the distinction
between Texas' statute and one dependent on actual audience reaction
too precious to be of constitutional significance. Both kinds of
statutes clearly are aimed at protecting onlookers from being offended
by the ideas expressed by the prohibited activity.
[***28]
According to the principles announced in Boos, Johnson's political
expression was restricted because of the content of the message he
conveyed. We must therefore subject the State's asserted interest in
preserving the special symbolic character of the flag to "the most
exacting scrutiny." Boos v. Barry, supra, at 321. n8
n8 Our inquiry is, of course, bounded by the particular facts of this
case and by the statute under which Johnson was convicted. There was no
evidence that Johnson himself stole the flag he burned, Tr. of Oral
Arg. 17, nor did the prosecution or the arguments urged in support of
it depend on the theory that the flag was stolen. Ibid. Thus, our
analysis does not rely on the way in which the flag was acquired, and
nothing in our opinion should be taken to suggest that one is free to
steal a flag so long as one later uses it to communicate an idea. We
also emphasize that Johnson was presecuted only for flag
desecration-not for trespass, disorderly conduct, or arson.
[***29]
[*413] Texas argues that its interest in preserving the flag as a
symbol of nationhood and national unity survives this close analysis.
Quoting extensively from the writings of this Court chronicling the
flag's historic and symbolic role in our society, the State
emphasizes the "'special place'" reserved for the flag in our
Nation. Brief for Petitioner 22, quoting Smith v. Goguen, 415 U.S., at
601 (Rehnquist, J., dissenting). The State's argument is not that it
has an interest simply in maintaining the flag as a symbol of
something, no matter what it symbolizes; indeed, if that were the
State's position, it would be difficult to see how that interest is
endangered by highly symbolic conduct such as Johnson's. Rather, the
State's claim is that it has an interest in preserving the flag as a
symbol of nationhood and national unity, a symbol with a determinate
range of meanings. Brief for Petitioner 20-24. According to Texas, if
one physically treats the flag in a way that would tend to cast doubt
on either the idea that nationhood and national unity are the flag's
referents or that national unity actually exists, the message conveyed
[***30] thereby is a harmful one and therefore may be prohibited. n9
n9 Texas claims that "Texas is not endorsing, protecting, avowing or
prohibiting any particular philosophy." Brief for Petitioner 29. If
Texas means to suggest that its asserted interest does not prefer
Democrats over Socialists, or Republicans over Democrats, for example,
then it is beside the point, for Johnson does not rely on such an
argument. He argues instead that the State's desire to maintain the
flag as a symbol of nationhood and national unity assumes that there is
only one proper view of the flag. Thus, if Texas means to argue that
its interest does not prefer any viewpoint over another, it is
mistaken; surely one's attitude toward the flag and its referents is
a viewpoint.
[*414] [**2545] 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. See, e. g., Hustler Magazine, Inc. v. Falwell, 485 U.S.,
at 55-56; [***31] City Council of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 804 (1984); Bolger v. Youngs Drug Products Corp., 463
U.S. 60, 65, 72 (1983); Carey v. Brown, 447 U.S. 455, 462-463 (1980);
FCC v. Pacifica Foundation, 438 U.S., at 745-746; Young v. American
Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68 (1976) (plurality
opinion); Buckley v. Valeo, 424 U.S. 1, 16-17 (1976); Grayned v.
Rockford, 408 U.S. 104, 115 (1972); Police Dept. of Chicago v. Mosley,
408 U.S. 92, 95 (1972); Bachellar v. Maryland, 397 U.S. 564, 567
(1970); O'Brien, 391 U.S., at 382; Brown v. Louisiana, 383 U.S., at
142-143; Stromberg v. California, 283 U.S., at 368-369.
We have not recognized an exception to this principle even where our
flag has been involved. In Street v. New York, 394 U.S. 576 (1969),
[***32] we held that a State may not criminally punish a person for
uttering words critical of the flag. Rejecting the argument that the
conviction could be sustained on the ground that Street had "failed
to show the respect for our national symbol which may properly be
demanded of every citizen," we concluded that "the constitutionally
guaranteed 'freedom to be intellectually . . . diverse or even
contrary,' and the 'right to differ as to things that touch the
heart of the existing order,' encompass the freedom to express
publicly one's opinions about our flag, including those opinions
which are defiant or contemptuous." Id., at 593, quoting Barnette,
319 U.S., at 642. Nor may the government, we have held, compel conduct
that would evince respect for the flag. "To sustain the compulsory
flag salute we are required to say that a Bill of Rights which guards
the individual's right to speak his own mind, left it open to public
authorities to compel him to utter what is not in his mind." Id., at
634.
[*415] In holding in Barnette that the Constitution did not leave this
course open to the government, [***33] Justice Jackson described one of
our society's defining principles in words deserving of their
frequent repetition: "If there is any fixed star in our
constitutional constellation, it is that no official, high or petty,
can 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." Id., at 642. In Spence, we held
that the same interest asserted by Texas here was insufficient to
support a criminal conviction under a flag-misuse statute for the
taping of a peace sign to an American flag. "Given the protected
character of [Spence's] expression and in light of the fact that no
interest the State may have in preserving the physical integrity of a
privately owned flag was significantly impaired on these facts," we
held, "the conviction must be invalidated." 418 U.S., at 415. See
also Goguen, supra, at 588 (White, J., concurring in judgment) (to
convict person who had sewn a flag onto the seat of his pants for
"contemptuous" treatment of the flag would be "[t]o convict not
to protect [***34] the physical integrity or to protect against acts
interfering with the proper use of the flag, but to punish for
communicating ideas unacceptable to the controlling majority in the
legislature"). In short, nothing in our precedents suggests that a
State may foster its own view of the flag by prohibiting expressive
conduct [**2546] relating to it. n10 To bring its argument outside our
[*416] precedents, Texas attempts to convince us that even if its
interest in preserving the flag's symbolic role does not allow it to
prohibit words or some expressive conduct critical of the flag, it does
permit it to forbid the outright destruction of the flag. The State's
argument cannot depend here on the distinction between written or
spoken words and nonverbal conduct. That distinction, we have shown, is
of no moment where the nonverbal conduct is expressive, as it is here,
and where the regulation of that conduct is related to expression, as
it is here. See supra, at 402-403. In addition, both Barnette and
Spence involved expressive conduct, not only verbal communication, and
both found that conduct protected.
n10 Our decision in Halter v. Nebraska, 205 U.S. 34 (1907), addressing
the validity of a state law prohibiting certain commercial uses of the
flag, is not to the contrary. That case was decided "nearly 20 years
before the Court concluded that the First Amendment applies to the
States by virtue of the Fourteenth Amendment." Spence v. Washington,
418 U.S. 405, 413, n. 7 (1974). More important, as we continually
emphasized in Halter itself, that case involved purely commercial
rather than political speech. 205 U.S., at 38, 41, 42, 45.
Nor does San Francisco Arts & Athletics, Inc. v. United States Olympic
Committee, 483 U.S. 522, 524 (1987), addressing the validity of
Congress' decision to "authoriz[e] the United States Olympic
Committee to prohibit certain commercial and promotional uses of the
word 'Olympic,'" relied upon by The Chief Justice's dissent,
post, at 429, even begin to tell us whether the government may
criminally punish physical conduct towards the flag engaged in as a
means of political protest.
[***35] Texas' focus on the precise nature of Johnson's expression,
moreover, misses the point of our prior decisions: their enduring
lesson, that the government may not prohibit expression simply because
it disagrees with its message, is not dependent on the particular mode
in which one chooses to express an idea. n11 If we were to hold that a
State may forbid flag burning wherever it is likely to endanger the
flag's symbolic role, but allow it wherever burning a flag promotes
that role-as where, for example, a person ceremoniously burns a dirty
flag-we would be saying that when it comes to impairing the flag's
physical integrity, the flag itself may be used as [*417] a symbol-as
a substitute for the written or spoken word or a "short cut from mind
to mind"-only in one direction. We would be permitting a State to
"prescribe what shall be orthodox" by saying that one may burn the
flag to convey one's attitude toward it and its referents only if one
does not endanger the flag's representation of nationhood and
national unity.
n11 The Chief Justice's dissent appears to believe that Johnson's
conduct may be prohibited and, indeed, criminally sanctioned, because
"his act . . . conveyed nothing that could not have been conveyed and
was not conveyed just as forcefully in a dozen different ways." Post,
at 431. Not only does this assertion sit uneasily next to the
dissent's quite correct reminder that the flag occupies a unique
position in our society-which demonstrates that messages conveyed
without use of the flag are not "just as forcefu[l]" as those
conveyed with it-but it also ignores the fact that, in Spence, supra,
we "rejected summarily" this very claim. See 418 U.S., at 411, n.
4.
[***36]
We never before have held that the Government may ensure that a symbol
be used to express only one view of that symbol or its referents.
Indeed, in Schacht v. United States, we invalidated a federal statute
permitting an actor portraying a member of one of our Armed Forces to
"'wear the uniform of that armed force if the portrayal does not
tend to discredit that armed force.'" 398 U.S., at 60, quoting 10
U. S. C. § 772(f). This proviso, we held, "which leaves Americans
free to praise the war in Vietnam but can send persons like Schacht to
prison for opposing it, cannot survive in a country which has the First
Amendment." Id., at 63.
We perceive no basis on which to hold that the principle underlying our
decision in Schacht does not apply to this case. To conclude that the
government may permit [**2547] designated symbols to be used to
communicate only a limited set of messages would be to enter territory
having no discernible or defensible boundaries. Could the government,
on this theory, prohibit the burning of state flags? Of copies of the
Presidential seal? Of the Constitution? [***37] In evaluating these
choices under the First Amendment, how would we decide which symbols
were sufficiently special to warrant this unique status? To do so, we
would be forced to consult our own political preferences, and impose
them on the citizenry, in the very way that the First Amendment forbids
us to do. See Carey v. Brown, 447 U.S., at 466-467.
There is, moreover, no indication-either in the text of the
Constitution or in our cases interpreting it-that a separate
juridical category exists for the American flag alone. Indeed, we would
not be surprised to learn that the persons [*418] who framed our
Constitution and wrote the Amendment that we now construe were not
known for their reverence for the Union Jack. The First Amendment does
not guarantee that other concepts virtually sacred to our Nation as a
whole-such as the principle that discrimination on the basis of race
is odious and destructive-will go unquestioned in the market-place of
ideas. See Brandenburg v. Ohio, 395 U.S. 444 (1969). We decline,
therefore, to create for the flag an exception to the joust of
principles protected by [***38] the First Amendment. It is not the
State's ends, but its means, to which we object. It cannot be
gainsaid that there is a special place reserved for the flag in this
Nation, and thus we do not doubt that the government has a legitimate
interest in making efforts to "preserv[e] the national flag as an
unalloyed symbol of our country." Spence, 418 U.S., at 412. We reject
the suggestion, urged at oral argument by counsel for Johnson, that the
government lacks "any state interest whatsoever" in regulating the
manner in which the flag may be displayed. Tr. of Oral Arg. 38.
Congress has, for example, enacted precatory regulations describing the
proper treatment of the flag, see 36 U. S. C. §§ 173-177, and we cast
no doubt on the legitimacy of its interest in making such
recommendations. To say that the government has an interest in
encouraging proper treatment of the flag, however, is not to say that
it may criminally punish a person for burning a flag as a means of
political protest. "National unity as an end which officials may
foster by persuasion and example is not in question. The problem is
whether [***39] under our Constitution compulsion as here employed is a
permissible means for its achievement." Barnette, 319 U.S., at 640.
We are fortified in today's conclusion by our conviction that
forbidding criminal punishment for conduct such as Johnson's will not
endanger the special role played by our flag or the feelings it
inspires. To paraphrase Justice Holmes, we submit that nobody can
suppose that this one gesture of an unknown [*419] man will change our
Nation's attitude towards its flag. See Abrams v. United States, 250
U.S. 616, 628 (1919) (Holmes, J., dissenting). Indeed, Texas'
argument that the burning of an American flag "'is an act having a
high likelihood to cause a breach of the peace,'" Brief for
Petitioner 31, quoting Sutherland v. DeWulf, 323 F. Supp. 740, 745 (SD
Ill. 1971) (citation omitted), and its statute's implicit assumption
that physical mistreatment of the flag will lead to "serious
offense," tend to confirm that the flag's special role is not in
danger; if it were, no one would riot or take offense because a flag
had been burned.
We are tempted to say, in [***40] fact, that the flag's deservedly
cherished place in our community will be strengthened, not weakened, by
our holding today. Our decision is a reaffirmation of the principles of
freedom and inclusiveness that the flag best reflects, and of the
conviction that our toleration of criticism such as Johnson's is a
sign [**2548] and source of our strength. Indeed, one of the proudest
images of our flag, the one immortalized in our own national anthem, is
of the bombardment it survived at Fort McHenry. It is the Nation's
resilience, not its rigidity, that Texas sees reflected in the
flag-and it is that resilience that we reassert today.
The way to preserve the flag's special role is not to punish those
who feel differently about these matters. It is to persuade them that
they are wrong. "To courageous, self-reliant men, with confidence in
the power of free and fearless reasoning applied through the processes
of popular government, no danger flowing from speech can be deemed
clear and present, unless the incidence of the evil apprehended is so
imminent that it may befall before there is opportunity for full
discussion. If there be time to expose through discussion the falsehood
and fallacies, [***41] to avert the evil by the processes of education,
the remedy to be applied is more speech, not enforced silence."
Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.,
concurring). And, precisely because it is our flag that is involved,
one's response to the flag [*420] burner may exploit the uniquely
persuasive power of the flag itself. We can imagine no more appropriate
response to burning a flag than waving one's own, no better way to
counter a flag burner's message than by saluting the flag that burns,
no surer means of preserving the dignity even of the flag that burned
than by-as one witness here did-according its remains a respectful
burial. We do not consecrate the flag by punishing its desecration, for
in doing so we dilute the freedom that this cherished emblem
represents.
V
Johnson was convicted for engaging in expressive conduct. The State's
interest in preventing breaches of the peace does not support his
conviction because Johnson's conduct did not threaten to disturb the
peace. Nor does the State's interest in preserving the flag as a
symbol of nationhood and national unity justify his criminal conviction
[***42] for engaging in political expression. The judgment of the Texas
Court of Criminal Appeals is therefore Affirmed.

 Ciapa in culo e porta a casa.
Ma allora e' vero che sei un pericoloso filo-amerikano come dice amalric 
:-DDD
Palmiro Pangloss
P.S. ancora perdi tempo a confutare le sparate del De Cesari?
-- 
"But, Michael, if you ever show up at my front door with a camera I'll 
kill you."
Clint Eastwood to Michael Moore
National Board of Review awards dinner at the Tavern on the Green, New 
York, NY 11.01.05

 P.S. ancora perdi tempo a confutare le sparate del De Cesari?
Quando hanno il potenziale di generare sparate ancora migliori,
sicuramente.
GT

 Palmiro Pangloss
Be', quando io ti do' del pirla, non lo faccio per interposte persone:
E quindi:
Pirla! 
Non eri tu quello che aspettava in religiosa attesa che l'Uniform Code 
of Military Justice' compiesse il suo corso...
Hint: si applichera' anche agli Squadroni della Morte americani in Irak?
Buahahaha...
Am.

 ).
Ricordati di segnalarlo all'AGI il prima possibile in modo che noi 
europei si possa fare buona figura con uno scoop...
Am.

 P.S. ancora perdi tempo a confutare le sparate del De Cesari?
Mi sai dire dove erano presenti "sparate" nel mio post?
Grazie.
-Stefano

 Ciapa in culo e porta a casa.
Prima di tutto vale solo per il Texas.
Poi e' una sentenza di appello, che puo' essere impugnata in Corte
Suprema.
-Stefano


Per esempio, qua', riguardo a
http://www.ernestmorgan.com/amgov/essay4/brennan.html


 Be',
PRRRRRRRRRRRRR!
Palmiro Pangloss


Per esempio, qua', riguardo a
Riguardo a una cosa che vale solo per il Texas.
Una sentenza che ribalta una sentenza di primo grado di segno totalmente
contrario.
Una sentenza che non e' finale visto che puo' essere portata in Corte
Suprema.
In pratica con quella sentenza ti ci puoi pulire il culo :)
-Stefano