Texas v. Johnson, 491 U.S. 397 (1989), is a landmark decision by the Supreme Court of the United States in which the Court held, 5–4, that burning the flag of the United States is protected speech under the First Amendment to the U.S. Constitution, as doing so counts as symbolic speech and political speech.
Activist Gregory Lee Johnson was convicted for burning an American flag during a protest outside the 1984 Republican National Convention in Dallas, Texas, and was fined $2,000 and sentenced to one year in jail in accordance with Texas law. Justice William Brennan wrote for the five-justice majority that Johnson's flag burning was protected under freedom of speech, and therefore the state could not censor Johnson nor punish him for his actions.
The ruling invalidated laws against desecrating the American flag, which at the time were enforced in 48 of the 50 states. The ruling was unpopular with the general public and lawmakers, with President George H. W. Bush calling flag burning "dead wrong". The ruling was challenged by Congress, which passed the Flag Protection Act later that year, making flag desecration a federal crime. The law's constitutionality was contested before the Supreme Court, which again affirmed in United States v. Eichman (1990) that flag burning was a protected form of free speech and struck down the Flag Protection Act as violating the First Amendment. In the years following the ruling, Congress several times considered the Flag Desecration Amendment, which would have amended the U.S. Constitution to make flag burning illegal, but never passed it. The issue of flag burning remained controversial decades later, and it is still used as a form of protest.
Time magazine described Texas v. Johnson as one of the best Supreme Court decisions since 1960, with legal scholars since stating that "Freedom of speech applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like."
Background
On August 22, 1984, Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade, participated in a political demonstration during the 1984 Republican National Convention in Dallas, Texas, protesting the policies of the Reagan administration. The protestors marched through the streets, chanting political slogans and staging "die-ins" at several corporate buildings to dramatize the effects of nuclear war. Several protestors occasionally stopped to spray-paint walls and knock over potted plants, although Johnson himself took no part in those actions.Johnson, 491 U.S. at 399. At the Mercantile Bank Building, protestors removed the American flag from the flagpole outside. An unidentified protestor handed the flag to Johnson, who hid it under his shirt.
When the protestors reached Dallas City Hall, Johnson poured kerosene on the flag and set it on fire. During the burning of the flag, protestors shouted phrases such as, "America, the red, white, and blue, we spit on you, you stand for plunder, you will go under." No one was injured during the demonstration, though some witnesses to the flag burning felt deeply offended. Johnson was arrested within a half-hour of igniting the flag, and an additional one hundred protestors were arrested "without any resistance". One spectator, a Korean War veteran named Daniel Walker, gathered the remains of the flag and buried them in the backyard of his home in Fort Worth.
Johnson was charged with violating the Texas flag desecration statute, which prohibited the vandalism of respected or venerated objects. Johnson was the only individual at the protest to be criminally charged. Also, he was initially indicted on one count of disorderly conduct, but that charge was eventually dropped. On December 13, 1984, a six-person jury found Johnson guilty of flag desecration, and he was subsequently sentenced to one year in jail and fined $2,000. Johnson appealed his conviction to the Fifth Court of Appeals of Texas, but was again found criminally liable. He then appealed to the Texas Court of Criminal Appeals, which overruled his conviction, finding that his First Amendment rights had been violated. That court found that Johnson's actions were symbolic speech protected by the First Amendment, writing that: "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."Johnson, 755 S.W.2d 92 (Tex. Crim. App. 1988). The Texas Court of Criminal Appeals also affirmed that his actions did not constitute a breach of the peace.
Texas filed a writ of certiorari asking the U.S. Supreme Court to review the case, which was granted in 1988.
Opinion of the Court
Oral arguments were held on March 21, 1989. David D. Cole and William Kunstler argued the case on behalf of Gregory Lee Johnson, and Kathi Alyce Drew argued on behalf of the state of Texas. During oral arguments, the state defended its statute on two grounds: first, states had a compelling interest in preserving a venerated national symbol; and second, the state had a compelling interest in preventing breaches of peace. The Supreme Court handed down a 5–4 opinion on June 21, 1989 in favor of Johnson. Justice William Brennan authored a majority opinion which Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy joined. Kennedy also authored a separate concurring opinion.
In the majority opinion, Brennan reiterated the Court's long-held recognition that the First Amendment to the United States Constitution protects non-speech acts as being symbolic speech, writing that the First Amendment's protection on speech "does not end at the spoken or written word". The Court recognized flags as being vessels for symbolic speech in Stromberg v. California (1931), in which the Court overruled the conviction of a youth camp worker who displayed a red flag at the camp.. Brennan also invoked Tinker v. Des Moines Independent Community School District (1969), in which the Court recognized the wearing of a black armband as a form of speech, to demonstrate the Court's history of recognizing symbolic actions as protected speech.. The Court would then analyze whether Johnson's actions could be considered symbolic speech, which would allow him to challenge his conviction by invoking the First Amendment.
In Spence v. Washington (1974), 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."Johnson, 491 U.S. at 404 (citing ). To determine whether a particular act possesses the elements of "speech" required to invoke the First Amendment, 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."Johnson, 491 U.S. at 404. The Court found, based on Spence, that Johnson's burning of the flag "constituted expressive conduct, permitting him to invoke the First Amendment."Johnson, 491 U.S. at 403. Brennan wrote that the political nature of the flag burning was "both intentional and overwhelmingly apparent,"Johnson, 491 U.S. at 406. having coincided with the Republican National Convention. Johnson, syllabus.
The Court rejected the argument that Johnson was liable for a breach of the peace, writing that, "no disturbance of the peace actually occurred or threatened to occur because Johnson burned the flag." Johnson, 491 U.S. at 417. While the State of Texas argued that flag burning is punishable on the basis that it "tends to incite" breaches of the peace, the Court disagreed, finding that flag burning does not necessarily lead to breaches of the peace. Citing Brandenburg v. Ohio (1969), Brennan wrote that the state may only punish speech that would incite "imminent lawless action", and rejected the notion that flag burning constituted such.Johnson, 491 U.S. at 409.
Kennedy's concurrence Justice Anthony Kennedy filed a concurring opinion in which he acknowledged the potentially unpopular nature of the holding, but affirmed that the role of the Supreme Court is to uphold the integrity of the Constitution, even if "sometimes we must make decisions we do not like."Johnson, 491 U.S. at 420 (Kennedy, J., concurring). Kennedy continued:
Rehnquist's dissent Chief Justice William H. Rehnquist wrote a dissenting opinion, joined by Justices Byron White and Sandra Day O'Connor. Rehnquist argued that the "unique position" of the flag "justifies a governmental prohibition against flag burning in the way respondent Johnson did here." Johnson, 491 U.S. at 422 (Rehnquist, C.J., dissenting). Rehnquist discussed the significance of the flag as applied throughout American history, such as during the colonial era, the War of 1812, and the Civil War, writing that burning a symbol of national unification was distinctly separate from other political demonstrations where freedom of speech might protect protestors.Johnson, 491 U.S. at 423 (Rehnquist, C.J., dissenting). Rehnquist wrote:
Rehnquist invoked several previous rulings by the Court that showed a recognition of the flag as a unique national symbol, including Halter v. Nebraska (1907) in which Justice John Marshall Harlan opined: "For that flag every true American has not simply an appreciation, but a deep affection."Johnson, 491 U.S. at 429 (Rehnquist, C.J., dissenting) (citing ). However, the Johnson majority found a lack of evidence in the Constitution that implied that the flag should be held in a position of "uniqueness". Brennan answered this claim directly in a response to Rehnquist's dissent.Johnson, 491 U.S. at 418.
Rehnquist further argued that Johnson's burning of the flag did not constitute expressive conduct, writing 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".Johnson, 491 U.S. at 432 (Rehnquist, C.J., dissenting). He opined that the Texas statute was a reasonable restriction only on how 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".
Stevens's dissent Justice John Paul Stevens also wrote a dissenting opinion. Stevens argued for the cultural importance of the flag and all that it stands for, more broadly than just as a symbol of national unity. He wrote of the flag:
Stevens compared public desecration of the flag to posting bulletin boards on the Washington Monument, writing that such behavior "might enlarge the market for free expression, but at a cost I would not pay". He asserted that Johnson was not punished for his opinion but rather for the way he chose to express it.Johnson, 491 U.S. at 438 (Stevens, J., dissenting).
Subsequent developments
Public reaction