TEXAS V. JOHNSON

In Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), the U.S. Supreme Court was asked to review the constitutionality of a Texas statute prohibiting the desecration of certain venerated objects, including state and national flags. The defendant was convicted under the statute for burning the U.S. flag during a political demonstration. In striking down the statute, the Supreme Court ruled that flag burning is symbolic speech protected by the Free Speech Clause of the first amendment to the U.S. Constitution. The case splintered the nine Supreme Court justices, much as the issue of flag burning splintered the rest of the nation.

The case stemmed from an incident during the 1984 Republican National Convention in Dallas, Texas. Outside the convention center a group of demonstrators marched through the streets to protest the policies of President ronald reagan. Several demonstrators distributed literature, shouted slogans, and made speeches. One demonstrator, Gregory Lee Johnson, unfurled a U.S. flag, doused it with kerosene, and set it on fire. While the flag burned, several protestors chanted: "America, the red, white, and blue, we spit on you." Several bystanders were offended by the flag burning, and one took the flag's remains home to his backyard where he buried them. No violence or altercations took place at any time during the demonstration, however.

Johnson was convicted of desecrating a venerated object in violation of Texas Penal Code section 42.09(a)(3) (1989). He was sentenced to one year in prison and fined $2,000. His conviction was affirmed by the Fifth District Court of Appeals in Dallas. Johnson's case was then reviewed by the Texas Court of Criminal Appeals, which reversed his conviction, holding that the state could not punish Johnson for burning the U.S. flag under these circumstances (Johnson v. State, 755 S.W.2d 92 [Tex. Crim. App. 1988]). The Free Speech Clause, the court ruled, forbids the government from establishing an orthodox symbol of national unity that is insulated from public criticism, symbolic or otherwise.

In a 5–4 decision the U.S. Supreme Court affirmed the holding of the Texas Court of Criminal Appeals. Joined by Justices thurgood marshall, harry a. blackmun, antonin scalia, and anthony kennedy, Justice william j. brennan jr. wrote the majority opinion for the Court. Chief Justice william h. rehnquist, joined by Justices sandra day o'connor, byron white, and john paul stevens, wrote the dissenting opinion. The majority opinion was divided into two parts.

First, the Court ruled that flag burning is expressive conduct for First Amendment purposes. The Court noted that the defendant's method of protest was not confined to the written or spoken word, which traditionally receives the most constitutional protection from governmental restraint. Nevertheless, the Court said, flag burning could not be fairly characterized as mere conduct devoid of any communicative qualities, which traditionally receives little or no protection under the Free Speech Clause. Instead, the Court observed, the defendant burned the flag as the symbolic culmination of an ardent political demonstration. "The expressive, overtly political nature of the conduct," the Court wrote, "was both intentional and over-whelmingly apparent."

Symbolic expression has long been associated with the U.S. flag under the federal Constitution. In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), the Supreme Court ruled that public school children cannot be compelled to salute the flag when doing so would violate their religious beliefs, which are protected by the First Amendment. In Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974), the Court ruled that the Free Speech Clause guarantees the right of individuals to attach a peace symbol to the flag in protest of U.S. foreign policy. Finally, in Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974), the Court ruled that individuals enjoy a First Amendment right to express themselves by affixing the flag to articles of clothing, even if that means allowing certain individuals to display the flag on the seat of their pants. Each of these cases was cited by the Court in Texas v. Johnson to illustrate that the defendant's method of protest was just another manifestation of symbolic expression involving the U.S. flag.

Second, the Supreme Court ruled that the interests asserted by the government were insufficient to overcome the defendant's right to engage in symbolic expression. The government had argued that the Texas statute represented a legislative attempt to prevent societal disorder, which presumably would result if flag burning were permitted. But the Court determined that the defendant's actions neither resulted in disorder nor created a substantial likelihood that disorder would ensue. Although several onlookers were seriously offended by the defendant's symbolic protest, the Court said that the First Amendment is designed to protect even the most disagreeable speech unless it is likely to produce imminent lawlessness, such as a breach of the peace. Had disorder resulted on this particular occasion, the Court pointed out, the defendant could have been prosecuted under the relevant provisions of the Texas Penal Code prohibiting breach of the peace. Because no arrests were made for breaching the peace, the Court held, the government's interest in preventing disorder was not implicated in this case.

The government also argued that the Texas flag desecration statute was a justifiable means of promoting national unity. The national flag, the government contended, is the country's most visceral image of nationhood, reflecting the solidarity of the 50 states for the common good. Flag burning, by contrast, tends to cast doubt on the strength of this image, the government asserted, causing Americans to question whether the United States is really united at all. The Supreme Court agreed with the government in part, acknowledging that the flag has come to symbolize 200 years of nationhood no less than the combination of letters found in the word "America."

At the same time, the Court cautioned, the flag does not mean the same thing to everyone. For some Americans the flag stands for an imperialistic foreign policy and a legacy of civil rights violations. The defendant no doubt had his own list of things symbolized by the flag. In prohibiting flag burning and other forms of desecration, the Court continued, the state of Texas was attempting to prescribe a single patriotic meaning for this national political symbol. The Court noted, however, that the government has no constitutional authority to restrict the content of political expression, whether it be written, spoken, or symbolic, without offering a compelling reason for doing so.

In this case, no compelling reasons were offered. If the flag were protected from desecration under the First Amendment, the Court reasoned, the government might seek to protect other national symbols from destruction as well, including copies of the federal Constitution and the Declaration of Independence. The Court was unwilling to allow the government to embark on this path for fear of where it might lead. The only proper remedy for the state of Texas, the Court emphasized, was to publicly encourage proper respect for the flag by honoring it through state-sponsored ceremonies such as Flag Day. In the marketplace of ideas, the Court opined, the only way to combat pernicious speech is through persuasive countervailing speech. The First Amendment requires individuals to persuade each other with sound arguments, not silence each other through governmental suppression.

In his dissenting opinion, Chief Justice Rehnquist wrote that "No other American symbol has been as universally honored as the flag." The chief justice paid tribute to the men and women of the armed forces who have sacrificed their lives to preserve the freedom symbolized by the flag. According to the chief justice, flag burning evinces a distinct lack of respect for the memory of those who have fought and died for the cause of liberty in the United States. While burning the flag might be considered expressive conduct, Rehnquist argued, the state of Texas, as well as every other state in the Union, has a compelling interest in preserving it from destruction and desecration.

Justice Brennan tried to address some of the concerns raised by Rehnquist in a brief paragraph included in the Court's majority opinion. "We are tempted to say …" Brennan wrote, "that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today." The Court's decision, Brennan stressed, underscores the "principles of freedom and inclusiveness that the flag best reflects" and reaffirms "the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength."

The Court applied the same approach to a federal flag burning law as it did to the Texas statute. After the decision in Johnson, President george h. w. bush proposed a constitutional amendment banning the burning and desecration of the American flag. Congress rejected this approach and instead passed the Flag Protection Act of 1989, Pub. L. 101-131, 103 Stat. 777, believing it had addressed the concerns of the Supreme Court and that the statute did not violate the First Amendment. Within minutes after the law went into effect, Shawn Eichman burned several flags on the steps of the U.S. Capitol. That same night, Mark John Haggerty set fire to a U.S. flag in front of the U.S. Courthouse in Seattle. Eichman and Haggerty were arrested and charged with violating the act. The district courts dismissed the charges, ruling that the act violated the holding in Johnson.

The Supreme Court, in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990) struck down the Flag Protection Act on a 5–4 vote. Justice Brennan, in his majority opinion, held that Congress cannot enact a law curtailing an individual's right to symbolic political expression. The act was not content-neutral because it allowed prosecution for disrespectful burning but allowed for respectful burning. In addition, the government may not ban the expression of an idea simply because it finds the idea offensive. The asserted intent of Congress to protect the "physical integrity" was a transparent ruse; Congress had sought to ban protected symbolic expression.

further readings

Goldstein, Robert Justin. 2000. Flag Burning and Free Speech: The Case of Texas v. Johnson. Lawrence: Univ. Press of Kansas.

Miller, J. Anthony. 1997. Texas v. Johnson: The Flag Burning Case. Springfield, N.J.: Enslow Publishers.

Tompkins, Nancy. 1997. Texas v. Johnson: Defending the Flag. New York: Franklin Watts.

cross-references

Freedom of Speech.

Texas v. Johnson, 491 U.S. 397 (1989), argued 21 Mar. 1989, decided 21 June 1989 by vote of 5 to 4; Brennan for the Court, Rehnquist, White, O'Connor, and Stevens in dissent. In Texas v. Johnson a majority of the Supreme Court considered for the first time whether the First Amendment protects desecration of the United States flag as a form of symbolic speech. A sharply divided Court had previously dealt with symbolic speech cases that involved alleged misuses of the flag. While the Court had ruled in favor of the defendants in those cases (Street v. New York, 1969; Smith v. Goguen, 1974; Spence v. Washington, 1974), it had done so on narrow grounds, refusing to confront the ultimate question of the constitutional status of flag desecration.

Johnson had burned a flag in front of a building while protesting policies of the administration of President Ronald Reagan during the 1984 Republican national convention in Dallas. Johnson's act seriously offended several onlookers. He was arrested for violating a Texas statute that made it a crime to intentionally or knowingly desecrate a state or national flag. He was convicted and sentenced to a year in prison and a fine of two thousand dollars. The Texas Court of Criminal Appeals reversed, holding that Johnson's actions were symbolic speech protected by the First Amendment.

Texas asserted two justifications for Johnson's conviction: preventing breaches of the peace triggered by the offense that desecration inflicts and preserving the integrity of the flag as a symbol of national unity. In order to assess the validity of these claims, Justice William J. Brennan had to weigh them against the First Amendment values at stake. Because government has more license to prohibit harmful “conduct” than harmful “speech,” the Court first had to decide whether Johnson's desecration was “conduct” or “speech.” Brennan ruled that the desecration was “expressive conduct” because it was an attempt to “convey a particularized message” (p. 404).

But First Amendment doctrine also grants the government more power to regulate “expressive conduct” than “pure expression” because, as the Court said in the draft‐card burning case United States v. O'Brien (1968), where “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations of First Amendment freedoms (p. 376). Texas claimed that Johnson's flag burning was a harmful nonspeech element and that he could have made his criticisms of America without resorting to desecration. The state, however, may not use such “incidental” regulation as a pretext for restricting speech because of its controversial content or because it simply causes offense. If the law is ultimately directed at the content of speech itself, it must pass the most stringent First Amendment standards (Boos v. Barry, 1988, p. 321). Only speech that incites others to imminent lawless or violent conduct may be subject to abridgment on these grounds (Brandenburg v. Ohio, 1969).

Applying these standards, Brennan concluded that Texas's conviction of Johnson was impermissible. There was no evidence that Johnson's expression threatened an imminent disturbance of the peace, and the statute's protection of the integrity of the flag as a symbol was improperly directed at the communicative message entailed in flag burning. “If there is a bedrock principle underlying the First Amendment,” Brennan wrote, “it is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” (p. 414).

The majority's opinion reaffirmed central First Amendment doctrine. Nonetheless, four members of the Court dissented because of the special nature of the flag as a symbol. Chief Justice William Rehnquist issued a poetic dissent that celebrated the history of the flag in America. The reaction to Johnson spilled into the national political arena. Within a few months Congress passed the Flag Protection Act of 1989, which attempted to challenge legislatively the Supreme Court's ruling in Johnson. Following Johnson, the Supreme Court declared this act unconstitutional in United States v. Eichman (1990).

See also Speech and the Press; Symbolic Speech.

Donald A. Downs