Texas v. Johnson (1989)
Background
Gregory Lee Johnson participated in a political demonstration during the Republican
National Convention in Dallas, Texas, in 1984. The purpose of the demonstration was to
protest policies of the Reagan administration and of certain Dallas-based corporations.
Demonstrators marched through the streets, chanted slogans, and held protests outside the
offices of several corporations. At one point, another demonstrator handed Johnson an
American flag.
When the demonstrators reached Dallas City Hall, Johnson doused the flag with
kerosene and set it on fire. As the flag burned, the demonstrators shouted, "America, the
red, white, and blue, we spit on you." No one was hurt or threatened with injury, but
some witnesses to the flag burning said they were deeply offended. One witness picked
up the flag's charred remains and took them home to bury in his backyard.
Johnson was charged with the desecration of a venerated object, in violation of the
Texas Penal Code. He was convicted, sentenced to one year in prison, and fined $2,000.
He appealed his conviction to the Court of Appeals for the Fifth District of Texas, which
let his conviction stand. He then appealed to the Texas Court of Criminal Appeals, the
highest court in Texas that hears criminal cases. That court overturned his conviction,
saying that the State, consistent with the First Amendment, could not punish Johnson for
burning the flag in these circumstances.
The court first found that Johnson's burning of the flag was expressive conduct
protected by the First Amendment. To criminalize or regulate such conduct would have
to serve a compelling state interest that outweighed the protection of the First
Amendment. The court concluded that criminalizing flag desecration so as to preserve the
flag as a symbol of national unity was not a compelling enough interest to survive the
constitutional challenge. It also held that, whereas preventing breaches of the peace
qualified as a compelling state interest, the statute was not drawn narrowly enough to
punish only those flag burnings that would likely result in a serious disturbance. Further,
the court stressed that another Texas statute prohibited breaches of the peace and could
serve the same purpose of preventing disturbances without punishing this flag
desecration.
The court said, "Recognizing that the right to differ is the centerpiece of our First
Amendment freedoms . . . 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 court
also concluded that the flag burning in this case did not cause or threaten to cause a
breach of the peace.
The State of Texas filed a petition for a writ of certiorari, and, in 1988, the Supreme
Court of the United States agreed to hear the case. The Court handed down its decision in
1989.
Constitutional Issue
The central issue of Texas v. Johnson concerns whether the Texas law prohibiting flag
burning violates the First Amendment protection of free speech as it would extend to
states through the Due Process Clause of the Fourteenth Amendment. This clause states
that no state can “deprive any person of life, liberty, or property, without due process of
law.”
The Court’s Decision
The Supreme Court eventually ruled in favor of Johnson in a controversial 5-4 decision.
Justice William Brennan wrote the Court’s majority opinion. The opinion was based on
the prevailing interpretation of the free speech doctrine used in similar cases of the time.
Basically, if the speech directly influences others to take violent or unlawful action, it can
be considered illegal. Because Johnson’s flag burning did not incite violence and because
the Court considered his actions as symbolic speech, the act was found to be protected by
the First and Fourteenth Amendments. Justice Brennan added, “if there is a bedrock
principle underlying the First Amendment, it is that government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or
disagreeable.”
The aftermath of this decision brought much controversy. Many Americans called for a
Constitutional amendment to ban flag burning and to reverse the Court’s decision in the
Johnson case. In 1989 Congress passed the Flag Protection Act, making it a federal
offense to desecrate the flag. This law did not last long. The same five justices who ruled
in favor of Johnson also ruled to strike down the Flag Protection Act in their decision in
United States v. Eichman (1990).
Questions for Analysis and Debate
1. Why do you think the decision in Texas v. Johnson was so unpopular around the country?
2. How might the Supreme Court have ruled if Johnson’s flag burning had incited a riot?
3. Choose a side in this case. Choose to argue for the state of Texas or for Gregory Lee
Johnson. After you choose a side, write a list of arguments for your side of the case. As a
class, choose sides and debate this issue. Do you think the state of Texas was justified in
arresting Johnson for burning the flag? Do you think protection of freedom of speech
should extend to those who are willing to burn a venerated symbol of our country? Do
you favor a Constitutional amendment to ban flag burning?