Texas v. Johnson

Background of the case

Gregory Lee "Joey" Johnson, then a member of the Revolutionary Communist Youth Brigade, participated in a political demonstration during the 1984 Republican National Convention in Dallas, Texas. The demonstrators were protesting the policies of the Reagan Administration and of certain companies based in Dallas. They marched through the streets, shouted chants, destroyed property, broke windows and threw trash, beer cans, soiled diapers and various other items, and held signs outside the offices of several companies. At one point, another demonstrator handed Johnson an American flag stolen from a flagpole outside one of the targeted buildings.

When the demonstrators reached Dallas City Hall, Johnson poured kerosene on the flag and set it on fire. During the burning of the flag, demonstrators shouted such phrases as, "America, the red, white, and blue, we spit on you, you stand for plunder, you will go under," and, "Reagan, Mondale, which will it be? Either one means World War III." No one was hurt, but some witnesses to the flag burning said they were extremely offended. One witness, Daniel E. Walker, received international attention when he collected the burned remains of the flag and buried them according to military protocol in his backyard.

Johnson was charged with violating the Texas law that prohibits vandalizing respected objects (desecration of a venerated object). He was convicted, sentenced to one year in prison, and fined $2,000. He appealed his conviction to the Fifth Court of Appeals of Texas, but he lost this appeal. On appeal to the Texas Court of Criminal Appeals the court overturned his conviction, saying that the State could not punish Johnson for burning the flag because the First Amendment protects such activity as symbolic speech.

The court said, "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol." The court also concluded that the flag burning in this case did not cause or threaten to cause a breach of the peace.

Texas asked the Supreme Court of the United States to hear the case. In 1989, the Court handed down its decision.

The Supreme Court's decision

The opinion of the Court came down as a controversial 5–4 decision, with the majority opinion delivered by William J. Brennan, Jr. and Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy joining Brennan, with Kennedy also writing a concurrence.

The Court first considered the question of whether the First Amendment to the United States Constitution protected non-speech acts, since Johnson was convicted of flag desecration rather than verbal communication, and, if so, whether Johnson's burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction.

The First Amendment specifically disallows the abridgment of "speech," but the court reiterated its long recognition that its protection does not end at the spoken or written word. This was concluded based on the 1931 case Stromberg v. California (283 U.S. 359) which ruled the display of a red flag as speech, and the 1969 case Tinker v. Des Moines Independent Community School District (393 U.S. 503), which ruled the wearing of a black armband as speech.

The Court rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," but acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court asked whether "an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."

The Court found that, "Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. ... Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent." The court concluded that, while "the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word," it may not "proscribe particular conduct because it has expressive elements."

Texas had conceded, however, that Johnson's conduct was expressive in nature. Thus, the key question considered by the Court was "whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression."

At oral argument, the state defended its statute on two grounds: first, that states had a compelling interest in preserving a venerated national symbol; and second, that the state had a compelling interest in preventing breaches of the peace.

As to the "breach of the peace" justification, however, the Court found that "no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag," and Texas conceded as much. The Court rejected Texas's claim that flag burning is punishable on the basis that it "tends to incite" breaches of the peace, citing the test from the 1969 case Brandenburg v. Ohio (395 U.S. 444) that the state may only punish speech that would incite "imminent lawless action," finding that flag burning does not always pose an imminent threat of lawless action. The Court noted that Texas already punished "breaches of the peace" directly.

Kennedy's concurrence

Justice Kennedy wrote a concurrence with Brennan's opinion. Kennedy wrote:

Rehnquist's dissent

Brennan's opinion for the court generated two dissents. Chief Justice William H. Rehnquist, joined by Justices Byron White and Sandra Day O'Connor, argued that the "unique status" of the flag "justifies a governmental prohibition against flag burning in the way respondent Johnson did here." Rehnquist wrote:

However, the Johnson majority found the lack of evidence for flag protection in the Constitution that necessitated the claim of "uniqueness" to counter indicate protection of the flag from free speech. They answered the "uniqueness" claim directly: "We have not recognized an exception to [bedrock First Amendment principles] even where our flag has been involved. ... There is, moreover, no indication—either in the text of the Constitution or in our cases interpreting it—that a separate juridical category exists for the American flag alone...We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment."

Rehnquist also argued that flag burning is "no essential part of any exposition of ideas" but rather "the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." He goes on to say that he felt the statute in question was a reasonable restriction only on the manner in which Johnson's idea was expressed, leaving Johnson with, "a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy." He quoted the 1984 Supreme Court decision in City Council of Los Angeles v. Taxpayers for Vincent (466 U.S. 789), where the majority stated that "the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places."

Stevens' dissent

Justice John Paul Stevens also wrote a dissenting opinion. Stevens argued that the flag "is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations. ... The value of the flag as a symbol cannot be measured." Stevens concluded, therefore, that "The case has nothing to do with 'disagreeable ideas.' It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset," and that Johnson was punished only for the means by which he expressed his opinion, not the opinion itself.

Subsequent developments

The Court's decision invalidated laws in force in 48 of the 50 states. More than two decades later, the issue remained controversial, with polls suggesting that a majority of Americans still supported a ban on flag-burning. Congress did, however, pass a statute, the 1989 Flag Protection Act, making it a federal crime to desecrate the flag. In the 1990 Supreme Court case United States v. Eichman (496 U.S. 310), that law was struck down by the same five person majority of justices as in Texas v. Johnson (in an opinion also written by Justice William Brennan). Since then, Congress has considered the Flag Desecration Amendment several times. The amendment usually passes the House of Representatives, but has always been defeated in the Senate. The most recent attempt occurred when S.J.Res.12 failed by one vote on June 27, 2006.