Supreme Court Cases

Texas v. Johnson, 1989

Historical Background

The flag of the United States serves as a symbol of the nation. In West Virginia v. Barnett, 1943, the Court struck down a West Virginia law requiring a salute to the flag, commenting: "Those who begin coercive limitation of dissent soon find themselves exterminating dissenters." The Court went on to say, "There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce the consent. Authority here is to be controlled by public opinion, not public opinion by authority…."

The Court's ruling in Barnett checked the tendency of a very patriotic people to treat their national symbol with an almost religious reverence. In the decades to follow, however, during the anti-war protests of the 1960s and 1970s, an outright disrespect for the flag seemed more common than an undue reverence toward it. Flag burning soon became not just a sign of protest against the Vietnam War, but a symbol used to convey disagreement with the National Government on several issues. Many Americans grew dismayed by the widespread desecration of their national symbol, and laws banning such desecration were passed in several States. Generally, these laws conformed to an act of Congress—the 1947 United States Flag Code—which presented "recommended" practices of respect for the flag.

Circumstances of the Case

During the 1984 Republican National Convention in Dallas, Texas, Gregory Johnson accepted a United States flag taken from a flagpole outside the convention center, doused the flag with kerosene, and set the flag on fire. Arrested by police officers on the scene, Johnson was prosecuted and convicted under a Texas law which prohibited desecration of the Texas and United States flags. The law defined desecration as "physical mistreatment of such objects in a way which the [accused] knows will offend one or more persons likely to observe or discover the act." Several witnesses testified that they had been seriously offended by the flag burning.

Upon appeal, the State court conviction was upheld in the Texas 5th Court of Appeals. The conviction was overturned in the Texas Court of Criminal Appeals, however, which held that the statute was in violation of the 1st Amendment's guarantee of free expression. Texas then appealed the case to the Supreme Court.

Constitutional Issues

Does flag burning present so great an offense to public peace that it should be prevented? Should the State of Texas be able to "protect the flag as a symbol of national unity"? Was the Texas law a violation of Johnson's freedom of political expression as guaranteed by the 1st Amendment? Was the burning "symbolic speech"? Does the 14th Amendment "incorporate" a 1st Amendment protection in the Texas constitution and override the Texas law prohibiting desecration of the American flag?

Arguments

For the State of Texas: Flag burning as a means of political expression enjoys no protection under the 1st Amendment. Protecting the physical integrity of the flag and other "sacred objects," such as the State flag, cemeteries, and public monuments, is an appropriate use of the State's police power. There are many other less controversial ways for Johnson to express his displeasure with the government. Texas did not contest or reject his right to make protests, only the means with which he chose to do so. Burning an American flag has no more protection under the 1st Amendment than "fighting words" have.

For Johnson: The 1st Amendment was particularly crafted to protect unpopular speech. Consider the decision of the Court in Edwards v. South Carolina, 1963, in which the Court clearly upheld the protection of unpopular speech. Johnson deliberately chose to burn the American flag in order to demonstrate his deep distress over the nation's policies. His gesture was an attempt to cry out to the government for a redress of grievances, and not to commit an act of juvenile vandalism. The 1st and 14th Amendments protect Johnson's symbolic protest.

Decision and Rationale

The Court voted by the narrowest of margins to overturn Johnson's conviction and strike down the Texas law as a violation of the 1st Amendment's protection of political expression. Justice William Brennan, writing for a 5–4 majority, expressed the Court's view that Johnson's actions were political speech rather than simple vandalism. The actions occurred at the end of a political rally. "Taking offense" at political action is not, the Court ruled, sufficient reason to suppress speech or expression. Brennan granted that "[a]lthough the state has a legitimate interest in encouraging proper treatment of the flag, it may not foster its own view of the flag by prohibiting expressive conduct…and by criminally punishing a person for burning the flag as a means of political protest…. 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."

In a sharp dissent, the chief justice wrote that "…the American flag has come to be a visible symbol embodying our nation and is not simply another idea or point of view competing for recognition in the marketplace of ideas…." As such, Rehnquist noted, "the public burning of the American flag…had a tendency to incite a breach of the peace…." Rehnquist pointed to the "full panoply of other symbols and every conceivable form of verbal expression" available for Johnson "to express his deep disapproval of national policy." Justice John Paul Stevens concurred on that point, noting that "sanctioning the desecration of the flag will tarnish its value as a national symbol…." In contrast to Brennan, Stevens said that banning the flag's burning "does not prescribe orthodox views or compel any conduct."

The close vote on this decision would indicate that the question has not been decided with any finality. "Symbolic speech," addressed in Tinker v. Des Moines, 1969, is a very controversial area of the 1st Amendment and one that the Court will likely revisit in upcoming sessions.

Questions for Discussion

  1. In your opinion, who should decide on the books to be purchased for a school library? Since tax money is used to purchase the books, and school board members are also tax-paying members of the community, should the school board make the final decision?
  2. Does the State or the nation have an overriding interest in compelling respect for the American flag? Why? What is your opinion of this decision?
  3. Many citizens argue that flag burning is not "symbolic speech." What do you think symbolic speech is? Do you think symbolic speech is and ought to be protected under the 1st Amendment?