points to the Act itself and presidential support for a constitutional amendment as evidence of the compelling nature of the government's interest.
However compelling the government may see its interests, they cannot justify restrictions on speech which shake the very cornerstone of the First Amendment. As the Court stated in Johnson, "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." The government seeks to deny the defendants the expressive use of the flag because their use will not promote the flag's symbolic value. It denies their expression because the ideas they wish to convey are offensive to the role of the flag as a symbol. The Supreme Court has held in Street v. New York, 394 U.S. 576, 592, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969), that a state may not prohibit a person from expressing verbally her opinions about the flag merely because they may shock the sensibilities of those who hear them. "Expressing contempt for the flag by burning it [may be] more emotionally shocking than speaking contemptuous words",
but both are shielded by the First Amendment.
As so many of its predecessors who have grappled with this issue, the Court feels unable to conclude without reflecting upon the gravity of its decision.
The First Amendment protects the expression of some repugnant viewpoints. Uniformed Nazis displaying swastikas are allowed to march in towns where Holocaust survivors dwell. Collin v. Smith, 578 F.2d 1197 (7th Cir.); cert. denied, 439 U.S. 916, 58 L. Ed. 2d 264, 99 S. Ct. 291 (1978). Ku Klux Klan members can burn crosses while expressing their racial and religious bigotry. Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969). To many perhaps, there are no more offensive viewpoints than those expressed by the burning of the American flag. The Court is acutely aware that those who burn our flag mock and trivialize this solemn symbol of our Nation's soul. Yet, "it is poignant but fundamental that the flag protects those who hold it in contempt." Johnson, 491 U.S. 397, 109 S. Ct. 2533, 2548, 105 L. Ed. 2d 342 (Kennedy, J., concurring).
Justice Jackson foreshadowed the outcome of this case when he wrote in Virginia Board of Education v. Barnette, 319 U.S. at 642, "freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."
The right to dissent is sometimes an albatross which burdens our society with its offensive sounds. Yet, political dissent lies at the heart of the First Amendment's protection. It is worth bearing in mind that the First Amendment to the Bill of Rights would not have been needed if the persons who exercise their right of free expression by word and action were all pleasing, loveable persons with whom the rest of the citizens agreed. The First Amendment, of course, makes no invidious exceptions. It provides protection for everyone, including the defendants.
The law under which these three defendants have been prosecuted is unconstitutional. Accordingly, the cases against them are dismissed with prejudice. An appropriate order is attached.
Dated: March 5, 1990
ORDER - March 5, 1990, Filed
Upon consideration of defendants' Motion to Dismiss the Informations Filed Against Shawn Eichman, David Blalock and Scott Tyler; the papers submitted in support of and in opposition to the motion; the oral arguments of counsel; the entire record herein; and for the reasons set forth in the accompanying opinion, it is by the Court this 5th day of March 1990,
ORDERED that the defendants' motion to dismiss is granted.