Texas v. Johnson

Texas v. Johnson
Supreme Court of the United States
Argued March 21, 1989 Decided June 21, 1989
Full case name	Texas v. Gregory Lee Johnson
Citations	491 U.S. 397 (more) 109 S. Ct. 2533; 105 L. Ed. 2d 342; 1989 U.S. LEXIS 3115; 57 U.S.L.W. 4770
Case history
Prior	Defendant convicted, Dallas County Criminal Court; affirmed, 706 S.W.2d 120 (Tex. App. 1986); reversed and remanded for dismissal, 755 S.W.2d 92 (Tex. Crim. App. 1988); cert. granted, 488 U.S. 884 (1988)
Holding
A statute that criminalizes the desecration of the American flag violates the First Amendment. Texas Court of Criminal Appeals affirmed.
Court membership
Chief Justice William Rehnquist Associate Justices William J. Brennan Jr. · Byron White Thurgood Marshall · Harry Blackmun John P. Stevens · Sandra Day O'Connor Antonin Scalia · Anthony Kennedy
Case opinions
Majority	Brennan, joined by Marshall, Blackmun, Scalia, Kennedy
Concurrence	Kennedy
Dissent	Rehnquist, joined by White, O'Connor
Dissent	Stevens
Laws applied
U.S. Const. amend. I; Tex. Penal Code § 42.11(a)

Texas v. Johnson, 491 U.S. 397 (1989), was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag in force in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant'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.

Background of the case

Gregory Lee Johnson participated in a political demonstration during the Republican National Convention in Dallas, Texas, in 1984. The demonstrators were protesting the policies of the Reagan Administration and of certain companies based in Dallas. They marched through the streets, shouted slogans, and held protests outside the offices of several companies. At one point, another demonstrator handed Johnson an American flag.

When the demonstrators reached Dallas City Hall, Johnson poured kerosene on the flag and set it on fire. During the burning of the flag, demonstrators shouted "America, the red, white, and blue, we spit on you." No one was hurt, but some witnesses to the flag burning said they were extremely offended. One witness picked up the flag's burned remains and buried them in his backyard.

Johnson was charged with violating the Texas law that prohibits vandalizing respected objects. 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, but he lost this appeal. He then took his case to the Texas Court of Criminal Appeals, which is the highest court in Texas that hears criminal cases. That court overturned his conviction, saying that the State could not punish Johnson for burning the flag because the First Amendment protects such activity as symbolic speech.

The State had said that its interests were more important than Johnson's symbolic speech rights because it wanted to preserve the flag as a symbol of national unity, and because it wanted to maintain order. The court said neither of these state interests could be used to justify Johnson's conviction.

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 asked the Supreme Court of the United States to hear the case. In 1989, the Court handed down its decision.

The Supreme Court's decision

The Supreme Court decision in Texas v. Johnson was not unanimous. Four justices — White, O’Connor, Rehnquist, and Stevens — disagreed with the majority’s argument that the personal liberty interests of a person to use a flag to communicate a strong, political message outweigh any state interests in protecting the physical integrity of the flag in order to prevent it from becoming less respected and preserve its meaning for the majority of the population.

Writing for justices White and O’Connor, Chief Justice Rehnquist argued:

     [T]he public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace. ... [Johnson’s public burning of the flag] obviously did convey Johnson’s bitter dislike of his country. But his act ... conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. 

So, it’s OK to ban a person’s expression of ideas if those ideas can be expressed in other ways? It’s OK to ban a book if a person can speak the words instead? Rehnquist admits that the flag occupies a unique place in society, which means that alternative forms expression that don’t use the flag won’t have the same impact, significance, or meaning.

     Far from being a case of “one picture being worth a thousand words,” flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others. 

Grunts and howls do not inspire laws banning them, however. A person who grunts in public is looked at as being strange, but we don’t punish them for grunting instead of communicating in whole sentences. If people are antagonized by desecration of the American flag, it’s because of what they believe is being communicated by such acts.

In a separate dissent, Justice Stevens wrote:

     [O]ne intending to convey a message of respect for the flag by burning it in a public square might nonetheless be guilty of desecration if he knows that others - perhaps simply because they misperceive the intended message - will be seriously offended. Indeed, even if the actor knows that all possible witnesses will understand that he intends to send a message of respect, he might still be guilty of desecration if he also knows that this understanding does not lessen the offense taken by some of those witnesses. 

This suggests that it’s permissible to regulate people’s speech based upon how others will interpret that speech. All of the laws against “desecrating” an American flag, even those which merely prohibit attaching an emblem to one, do so in the context of publicly displaying the altered flag. Doing it in private isn’t a crime; therefore, the harm to be prevented must be the “harm” of others witnessing what was done. It can’t be merely to prevent them from being offended, otherwise public discourse would be reduced to platitudes.

Instead, it must be to protect others from experiencing a radically different attitude towards and interpretation of the flag. Of course, it’s unlikely that someone would be prosecuted for desecrating a flag if only one or two random people are upset — no, that will be reserved for those who upset larger numbers of witnesses. In other words, the wishes of the majority to not be confronted with something too far outside their normal expectations can limit what sorts of ideas are expressed (and in what way) by the minority.

This principle is completely foreign to constitutional law and even to the basic principles of liberty, as was eloquently stated the following year in the Supreme Court’s follow-up case of United States v. Eichman:

     While flag desecration - like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures - is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. 

If freedom of expression is to have any real substance, it must cover the freedom to express ideas that are uncomfortable, offensive, and disagreeable. That’s precisely what burning, defacing, or desecrating an American flag often does — and the same is true with defacing or desecrating other objects which are commonly revered. The government has no authority to limit people’s uses of such object to communicate only approved, moderate, and inoffensive messages.

Subsequent developments

The Court's decision, which invalidated the laws in force in 48 of the 50 states, set off a wave of protest that continues to this day, as many Americans are deeply outraged by desecration of the flag. Subsequent to Texas v. Johnson, proposals were introduced year after year in Congress to amend the Constitution to allow the federal government and states to prohibit flag burning. On several occasions this amendment came close to passage, obtaining the requisite two-thirds majority in the House, only to fail in the Judicial Branch

Congress did, however, pass a statute, the 1989 Flag Protection Act, making it a federal crime to desecrate the flag. In the case of United States v. Eichman, 496 U.S. 310 (1990), that law was struck down by the same five person majority of justices as in Johnson (in an opinion also written by Justice Brennan).

Since then, Congress has considered the Flag Desecration Amendment several times. The amendment usually passes the House of Representatives, but has always been defeated in the Senate. The most recent attempt occurred when S.J.Res.12 failed by one vote on June 27, 2006.

External links

• Text of the decision
• Audio recording of oral arguments
• First Amendment Library entry on Texas v. Johnson
• Thoughts on Flag Burning and other statements by Edward Hasbrouck and Joey Johnson
• Texas v. Johnson (1989) from LandmarkCases.org