Texas v. Johnson Page 16

Texas v. Johnson general information

Media for Texas v. Johnson

Audio Transcription for Oral Argument - March 21, 1989 in Texas v. Johnson

William M. Kunstler:

They are recommendations.

It used to be you couldn't fly the flag at night.

Now, you can fly it if it's illuminated, and so on.

John Paul Stevens:


William M. Kunstler:

They're recommendations.

There are no criminal penalties.

John Paul Stevens:

--Do you think the federal government has any power at all to... to regulate how this flag is displayed in public places?

William M. Kunstler:

I don't believe so.

I don't... I'm thinking in my mind whether they have any injunctive power.

John Paul Stevens:

There's no state interest whatsoever?

William M. Kunstler:

I don't see any state interest whatsoever.

John Paul Stevens:

I feel quite differently.

Anthony M. Kennedy:

Can the federal government prohibit use of the flag for commercial purposes?


William M. Kunstler:

Since Halter against Nebraska, where there was a Nebraska statute against using the flag on beer bottles or beer cans, I don't know whether there can be any prohibition of that.

It's used all over for commercial purposes.

I notice that Barbara Bush wore a flag scarf, for example.

There are flag bikinis, there are flag everything.

There are little cocktail flags that you put into a hot dog or a meatball and then throw in the garbage pall.

They're flags under the Texas statute, something made out of cloth, but I think they're are all sorts of flags used commercially.

I'm not sure in my heart whether I think there's any control over the use of the flag, not on the criminal side anyway.

Whether there is a... in answering Justice Stevens' question whether there is an injunctive process that can be employed or not... I... I... I won't go into it.

I don't know.

But I have an instinctive feeling that's different, apparently, then Justice Stevens' that there is no control of the use of the flag commercially, although I don't think it's necessary for this case because here we're only talking about a criminal statute.

Now, with reference to... when I read Justice White's concurrence in Goguen, I notice he said that punishment for communicating ideas about the flag unacceptable to controlling majority in the legislature is something that is wrong, to punish people for having a different idea about the flag, different than the Texas legislature has with the flag in its desecration statute.

And by the way, that's called the desecration of venerated objects.

That's the classification they give to it.

And I agree with Justice Scalia that flag burning of a single flag in front of the new City Hall in Dallas doesn't lessen the value as a symbol.

John Paul Stevens:

Let me go back to the any state interest at all.

Do you think the military would have any legitimate interest in disciplining a member of the military who showed disrespect for the flag on public occasions?