Caseflicks

Supreme Court of the United States • 1989

Texas v. Johnson

491 U.S. 397 | 109 S. Ct. 2533 | 105 L. Ed. 2d 342 | 1989 U.S. LEXIS 3115 | 57 U.S.L.W. 4770

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Takeaway

In short, this case holds that the First Amendment protects burning the American flag as political protest: government may encourage respect for the flag, but it may not criminally punish dissenting expression simply because it is offensive.

Background

During the 1984 Republican National Convention in Dallas, Gregory Lee Johnson joined a political protest against Reagan administration policies and certain Dallas corporations. At the demonstration’s end outside Dallas City Hall, Johnson doused an American flag with kerosene and burned it while protesters chanted anti-government slogans. No one was injured or threatened, although several witnesses said they were seriously offended.

Texas charged Johnson alone with desecration of a venerated object under Texas Penal Code § 42.09. The statute made it a misdemeanor intentionally or knowingly to physically mistreat a state or national flag in a way the actor knew would seriously offend an observer. Johnson was convicted, sentenced to one year in prison, and fined $2,000. The Texas Court of Appeals affirmed, but the Texas Court of Criminal Appeals reversed, holding that the First Amendment protected Johnson’s flag burning under these circumstances. The Supreme Court granted review and affirmed the state high court.

Issues

Issue #1

Whether Johnson’s public burning of the American flag during a political demonstration was expressive conduct protected by the First Amendment.

Holding

Yes. Johnson’s flag burning was expressive conduct that implicated the First Amendment.

Reasoning

First Amendment protection extends beyond spoken and written words to conduct sufficiently imbued with communicative elements. The Court asks whether the actor intended to convey a particularized message and whether viewers were likely to understand it.

Johnson burned the flag at the culmination of an organized political protest occurring during the Republican National Convention. The surrounding speeches, chants, literature, and timing made his anti-government message intentional and overwhelmingly apparent to observers.

The Court’s earlier decisions had recognized that conduct involving flags may convey protected expression, including refusing to salute the flag and displaying a flag bearing a peace symbol. In context, Johnson’s burning likewise communicated a political message rather than merely destroying property.

Issue #2

Whether Texas could sustain Johnson’s conviction on its interest in preventing breaches of the peace.

Holding

No. Texas’s interest in preventing breaches of the peace was not implicated by the facts of this case.

Reasoning

No actual disturbance occurred at the flag burning, and the record did not show that one was imminent. Texas relied principally on witnesses’ serious offense, but offense alone does not establish a likelihood of violence or disorder.

The First Amendment protects expression that provokes anger, unrest, or disagreement. The State may not presume that provocative political expression will lead to violence merely because an audience finds it deeply offensive.

Johnson’s conduct was not fighting words because it was a generalized political protest, not a direct personal insult likely to provoke an immediate retaliatory fight. Texas remained free to punish actual or imminent lawless conduct under its ordinary breach-of-peace law.

Issue #3

Whether Texas’s interest in preserving the flag as a symbol of nationhood and national unity justified punishing Johnson’s political flag burning.

Holding

No. The statute, as applied to Johnson, was a content-based restriction on political expression that Texas’s asserted interest could not justify.

Reasoning

The State’s asserted interest was related to suppressing expression, not merely regulating noncommunicative conduct. Texas objected to flag burning because of the message it conveyed about the flag and the Nation; therefore, the more deferential test for incidental restrictions on conduct in United States v. O’Brien did not apply.

The statute targeted physical mistreatment only when the actor knew it would seriously offend likely observers. Texas permitted respectful disposal of a worn flag by burning it, showing that the law did not protect the flag’s physical integrity in all circumstances; it punished the communicative, offensive use of the symbol.

Because the statute turned on the likely emotive impact of Johnson’s message, it was content based and subject to the most exacting scrutiny. The government generally may not prohibit an idea simply because it is offensive or disagreeable, especially where the expression is political criticism at the core of the First Amendment.

Texas could encourage respect for the flag through persuasion, example, and nonbinding rules of etiquette, but it could not criminally compel reverence by forbidding a dissenting use of the flag as a political symbol. Permitting flag burning that expressed respect while prohibiting flag burning that expressed dissent would allow the government to prescribe an official orthodoxy about the flag.

The Court rejected a special First Amendment exception for the American flag. Protecting the freedom to criticize even cherished national symbols, the Court concluded, better reflects the liberty and resilience the flag represents.

Concurrences

Justice Kennedy

Reasoning

Justice Kennedy joined the Court’s opinion without reservation but wrote separately to acknowledge the personal difficulty of the result. In his view, the case involved a clear constitutional command rather than a statutory ambiguity that another branch could correct, so the Court alone bore responsibility for enforcing the First Amendment.

Kennedy agreed that the flag occupies a singular place of honor and that Johnson’s conduct was deeply offensive. But the constitutional protection for speech includes the painful consequence that the flag protects those who hold it in contempt. Because Johnson’s act was speech in both the technical and fundamental constitutional sense, Kennedy concluded that the law required his release.

Dissents

Chief Justice Rehnquist

Reasoning

Chief Justice Rehnquist argued that the American flag’s more than two centuries of unique historical significance justified a narrowly focused prohibition on its public burning. He traced the flag’s role in the Revolution, the War of 1812, the Civil War, and later conflicts to show that it was not simply one symbol among many competing in the marketplace of ideas.

In his view, public flag burning was comparable to fighting words: an inherently inflammatory act of slight value in the search for truth that could incite a breach of the peace. Johnson remained free to criticize the government through speech, marches, slogans, demonstrations, and other symbols; the statute denied him only one particularly provocative method.

Rehnquist rejected the majority’s conclusion that the statute punished Johnson because of his viewpoint. He believed Texas punished the public burning of this uniquely revered national symbol, regardless of the precise political idea Johnson wished to express, and that the State could protect the flag’s physical integrity and public dignity.

He also relied on the longstanding federal and state enactments against flag desecration and read prior flag cases as reserving, rather than deciding, whether a State could prohibit public flag burning. In his view, the Court should have upheld the Texas statute as applied.

Justice Stevens

Reasoning

Justice Stevens maintained that the American flag’s uniquely valuable symbolic status distinguished it from ordinary symbols, armbands, or emblems. The flag represents not only national unity but also the Nation’s history and ideals of liberty, equality, religious tolerance, and goodwill; the State had a significant and legitimate interest in preserving that value.

Stevens viewed the Texas law as regulating an objectionable method of expression rather than suppressing Johnson’s political viewpoint. In his account, desecration turned on physical treatment of the flag likely to seriously offend observers, not on the substance of the actor’s message; even a person claiming to burn a flag respectfully could violate the statute if the act seriously offended onlookers.

He analogized flag desecration to damaging a national monument or gravesite. Just as the government may preserve the Lincoln Memorial or other important national assets against destructive expressive conduct, it could preserve the flag’s intangible but exceptional value without materially burdening dissenters’ ample alternative means of political expression.

Because Johnson could express his criticism through words and numerous other forms of protest, Stevens believed the modest burden imposed by a prohibition on public flag desecration was justified by the interest in preserving the flag as a national asset.