Texas v. Johnson

Argued March 21, 1989
Decided June 21, 1989
Case opinions:
Majority: Brennan, joined by Marshall, Blackmun, Scalia, Kennedy
Concurrence: Kennedy
Dissent: Rehnquist, joined by White, O'Connor

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 was protected speech under the First Amendment to the U.S. Constitution, as doing so counts as symbolic speech and political speech.

In the case, 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 the freedom of speech, and therefore the state could not censor Johnson nor punish him for his actions.

The ruling invalidated prohibitions on 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 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 it as one of the best Supreme Court decisions since 1960, with legal scholars since stating about it that "Freedom of speech applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like."

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Background


Johnson (right) with attorney Kunstler, c. 1989

On August 22, 1984, Gregory Lee Johnson, then a member of the Revolutionary Communist Youth Brigade, participated in a political demonstration during the 1984 Republican National Convention in Dallas, 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 it. At the Mercantile Bank Building, protestors removed the American flag from the flagpole outside. An unknown 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. One spectator, a Korean War veteran named Daniel Walker, gathered the remains of the flags 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. He was initially indicted on one count of disorderly conduct, but the 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 Johnson's First Amendment rights had been violated. The 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. 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 to the Supreme Court, asking them to review the case. In 1988, the Supreme Court granted certiorari.

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