Case

The Republican Party’s national convention in 1984 to renominate Ronald Reagan, in Dallas, Texas, was met with protests and criticism. One of the protestors was Gregory Lee Johnson, who burned an American flag outside of Dallas City Hall. He was arrested and charged with violating Texas law, which forbids the desecration of a state or national flag. Johnson was found guilty of violating the law and was ordered to spend a year in prison and pay a two thousand dollar fine. Johnson and his lawyers appealed his conviction, arguing the Texas state law was in violation of Mr. Johnson’s free speech rights outlined in the First Amendment of the United States Constitution. The state rebutted that argument, stating that the law was in place to maintain peace in the community and preserve a “symbol of nationhood.” The Supreme Court was asked to determine if desecrating the American flag in any way is a form of speech protected by the First Amendment. 

Decision

In a controversial 5-4 decision, the Court ruled that Johnson had the right to burn the flag under the First Amendment. Flag burning was found to be expressive conduct since there was intent to convey a particular message. Justice William Brennan wrote for the majority. His opinion was joined by two liberal justices, Harry Blackmun and Thurgood Marshall, and two conservative justices, Anthony Kennedy and Antonin Scalia. Justice Brennan wrote that while many may take offense to flag burning, perceived offensiveness does not justify prohibition of speech. While many see the flag as a symbol of national pride, the state cannot determine all the messages interpreted in one symbol. Also, Johnson’s actions were overtly political since he was demonstrating at a political event. Political speech is protected by the First Amendment. 

The Court also disagreed with the idea that burning the flag could amount to using “fighting words.” Since peace was not at risk, the state could not make police power claims. Brennan forcefully defended the power of the First Amendment, writing that the “bedrock principle” of the First Amendment “is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Justice Kennedy wrote that “sometimes we must make decisions we do not like.” While Justice Kennedy regarded the outcome of the case with “distaste,” his commitment to the Constitution outweighed his feelings against flag burning. 

Dissent 

Justice William Rehnquist wrote a dissent, joined by Justice Byron White and Justice Sandra Day O’Connor. Justice Rehnquist wrote that the American flag is a symbol that embodies the nation, not a political symbol. While Rehnquist acknowledged the First Amendment, he maintained that it is not absolute. Unlike the majority, he regarded flag burning as breaching the peace. In addition, Rehnquist noted that Johnson was not arrested for saying derogatory things about President Reagan, and was only arrested after flag burning. Rehnquist suggested that Johnson should have protested in countless other ways that would not have violated Texas state law. 

Justice Stevens, considered on the liberal bloc of the Court, wrote his own dissent. He insisted that the flag embodies the characteristics of American society, and allowing it to be desecrated will hurt its value in the eyes of Americans and the international community. Stevens also suggested another form of expression in place of flag burning. 

Impact

The Supreme Court’s ruling led Congress to pass the Flag Protection Act of 1989. In this bipartisan Act, anyone that desecrated the flag in any form could be fined or jailed for a maximum year sentence. However, in Eichman v United States (1990), the Court ruled the law unconstitutional. The decision had the same breakdown of justices as in Johnson. There remain calls to outlaw flag burning, but the Court has never overturned the Johnson or Eichman decisions. 

Think Further

  1. Why do you think the breakdown of justices in the majority and in the dissent was so unusual? 
  2. What do you think about the dissenting justices suggesting that Johnson should have expressed his views in a different way? Is it their place to suggest how people should protest or express their views? 
  3. Many American legal scholars have said that protecting the speech we disagree with or find vile is most essential to preserve all speech. Do you agree? What do you think about Justice Kennedy saying “sometimes we must make decisions we do not like”?

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  1. Gillman, Howard. American Constitutionalism, Second Edition. Volume II Rights and Liberties. [Virtual Source Bookshelf].
  2. Moreno, J. Edward. “Trump suggests legislation that would jail people who burn the flag for a year,” The Hill (June 20, 2020) https://thehill.com/homenews/campaign/503757-trump-suggests-legislation-that-would-jail-people-who-burn-the-flag-in 
  3. “Texas v. Johnson,” Encyclopedia Britannica, (June 14, 2020) https://www.britannica.com/event/Texas-v-Johnson
  4. “Texas v. Johnson.” Oyez, www.oyez.org/cases/1988/88-155