Texas v. Johnson
Texas v. Johnson, 491 U.S. 397 (1989),[1], was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states.
Justice William Brennan wrote for a five-justice majority in holding that the defendant Gregory Lee Johnson's act of flag burning was protected speech under the First Amendment to the United States Constitution. Johnson was represented by attorneys David D. Cole and William Kunstler.
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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, which ruled the display of a red flag as speech, and the 1969 case Tinker v. Des Moines Independent Community School District, 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 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.
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When the Supreme Court ruled to allow American flag burning
June 21, 2018 by NCC Staff
On June 21, 1989, a deeply divided United States Supreme Court upheld the rights of protesters to burn the American flag in a landmark First Amendment decision.
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In 1984, Gregory Lee Johnson burned a flag at the Republican National Convention in Dallas. Officials in Texas arrested Johnson and convicted him of breaking a state law; he was sentenced to one year in prison and ordered to pay a $2,000 fine. ... In reaction to the Johnson decision, which only applied to the state of Texas, Congress passed an anti-flag burning law called the Flag Protection Act of 1989. But in 1990, the Court struck down that law as unconstitutional.
“If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” said Justice William Brennan.
The case remains controversial to the present day, and Congress has, as recently as 2006, attempted to amend the Constitution to prohibit flag desecration, with the effort failing by one vote in the Senate.
In one of his last public events, Scalia explained why he cast the deciding vote in the Johnson case, on the principal of a textual reading of the First Amendment. “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said at a November 2015 event in Philadelphia. “But I am not king.”
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