The Supreme Court may take a knee

Three decades ago, the U.S. Supreme Court probably settled the current controversy involving protests within the National Football League about freedom of speech. The recent public shakeup with some players “taking a knee” or “linking arms” may be somewhat different than protest directly involving the American flag but many judicial experts would bet that “taking a knee” is protected speech under the First Amendment and is now settled law.

Like it or not, the U. S. Constitution protects the right of Americans to protest the actions of their government.

In 1984, a Texan, Gregory Johnson, protested government policies by burning an American flag outside City Hall in Dallas. Under a Texas state law prohibiting desecration of the flag, the man was arrested, sent to trial, found guilty, and sentenced to one year in prison with a $2,000 fine. Johnson took his case to the Texas Court of Appeals and won. Texas then took the case to the U.S. Supreme court.

The Court had a history on such cases dating back to 1931 when it struck down a California law that had banned the flying “The Red flag” to protest against government policy. Many year’s later, because of protests against the war in Vietnam, the U.S. Congress passed legislation, The Flag Desecration Act, to make it “illegal” to “knowingly” cast “contempt” upon “any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it.”

Six years later, that federal law also came to the Supreme Court in a case in which a person had defaced the flag by taping of the Peace Sign on it. The Court ruled that act was expression and protected under the first Amendment of the Constitution.

The next case and the most recent involved the burning of the flag by that Texan, Gregory Johnson. Again the court ruled in favor of the right of Americans to protest.

Justice Anthony wrote the concurrence and explained why the Supreme was again “taking a knee”: “The hard fact is that sometimes we must make decisions we do not like … . 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.”

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Pat Williams served Montana in the U.S. House of Representatives for nine consecutive terms from 1979 to 1997. He lives in Missoula and teaches at the University of Montana.