Texas v. Johnson, 491 U.S. 397; 109 S. Ct. 2533; 105 L. Ed. 2d 342 (1989)

Facts—After he publicly burned a U.S. flag at a protest at the 1984 Republican National Convention in Dallas, Texas, the state sentenced Johnson to jail and fined him under a Texas law prohibiting the desecration of a venerated object. The Court of Appeals for the Fifth District of Texas affirmed the conviction, but the Texas Court of Criminal Appeals overturned the conviction on the basis that burning the flag was a form of protected symbolic speech.

Question—Was Johnson’s action in publicly burning a U.S. flag a form of protected expression that the First and Fourteenth Amendments protected?

Decision—Yes.

Reasons—J. Brennan (5–4). Burning the flag was a form of “expressive conduct,” as other cases dealing with flags have recognized. Although a state has a freer hand in regulating expressive conduct than pure speech, it may not “proscribe particular conduct because it has expressive elements.” Texas asserts two interests in this case—preventing breaches of the peace and preserving the flag as a symbol of national unity. The evidence in this case did not indicate that Johnson’s actions actually threatened a breach of the peace, nor was his action a form of prohibited “fighting words,” in that Johnson did not direct his action to any particular onlooker in particular. Texas’s attempt to preserve the flag as a symbol of national unity indicates that its regulation was designed to control “the content of the message he [Johnson] conveyed.” “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.” It would be difficult to distinguish the U.S. flag from other venerated symbols, and there is no constitutional basis for doing so. A state has the right to make “precatory [recommendatory] regulations” to protect the flag, but it must attempt to persuade rather than punish those who disagree with it.

J. Kennedy’s concurrence affirmed that justices sometimes had to make decisions they did not like but that Johnson’s “acts were [protected] speech.” Arguing that “a page of history is [worth] a volume of logic,” C.J. Rehnquist’s dissent cited numerous historical writings and incidents to indicate that the U.S. flag occupied a unique place, and affirming that Johnson was not punished for what he said but for what he did. He likened Johnson’s action to “an inarticulate grunt or roar that . . . is most likely to be indulged in not to express any particular idea, but to antagonize others.” He further accused the Court of assuming the “role as a Platonic guardian.” J. Stevens’s dissent likewise argued for the uniqueness of the U.S. flag and argued that the state prosecuted Johnson not for his point of view but “because of the method he chose to express his dissatisfaction with those policies.”

Note—In reaction to this decision, Congress quickly adopted a Flag Protection Act, but, using logic similar to that in Texas v. Johnson, the Court struck this law down in United States v. Eichman, 496 U.S. 310 (1990).