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Majority Opinions Authored by Justice William Brennan

Congress passed the Flag Protection Act of 1989 after the Supreme Court overturned a Texas statute criminalizing the knowingly offensive destruction American flag in Texas v. Johnson. The Flag Protection Act criminalized "knowingly" mutilating, defacing, physically defiling, burning, or tampling upon an American flag. The Supreme Court found the Flag Protection Act to be unconstitutional. Although it did not contain a content-based limitation like the Texas statute did, the Government's interest in protecting the "physical integrity" of the flag in order to preserve its symbolism is related to the suppression of free expression and violates the First Amendment.


The courts below declared unconstitutional the following Virginia statute: "It shall be unlawful for any person . . . to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse" visual or written material that "depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles." Va. Code § 18.2-391(a) (Supp. 1987). The unique factual and procedural setting of this case leads us to conclude that an authoritative construction of the Virginia statute by the Virginia Supreme Court would substantially aid our review of this constitutional holding, and might well determine the case entirely. Accordingly, we certify two questions to the Virginia Supreme Court.[1]


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