Texas V Johnson

In 1984 the Republican National Convention was held in Dallas, Texas. While there, a group of protesters, opposed to President Reagan's reelection, burned an American flag. Specifically, Greg Johnson was seen dousing the flag with kerosene and lighting it on fire. Johnson was arrested under a Texas flag desecration law. He was convicted and sentenced to one year in jail and fined $2000. The State Court of Appeals affirmed but the Texas Court of Criminal Appeals reversed the decision.

The court first found that Johnson's actions were protected under the free speech clause under the First Amendment. The court also found that since the action was not violent in nature and did not create a disturbance that it was not criminally sanctioned flag desecration. The case then went the U.S. Supreme Court to be argued on March 21, 1989.

The Supreme Court had to find if Johnson's conviction of burning of the flag and breaking a Texas law was consistent with the First Amendment. In a 5-4 decision, the court found that it was not consistent with the First Amendment and that Johnson's conviction under Texas law was unconstitutional. Justice Brennan delivered the opinion of the court. In order to convict Johnson, the state asserted two interests: preserving the flag as a symbol of national unity and preventing the breaches of the peace.

The Texas Court of Criminal Appeals first found that Johnson alone was the one that was convicted and that his actions were symbolic in nature and under the circumstances of the event that it was held at, the Democratic National Convention. "Given the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellant's act would have understood the message that appellant intended to convey. The act for which appellant was convicted was clearly 'speech' contemplated by the First Amendment." The court also stated that, "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms," the court explained, "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 when it cannot mandate the status or feeling the symbol purports to represent." The Supreme Court found that the state's first interest of preserving the flag as a symbol of national unity was not made. The state had not shown that the flag was in danger of being stripped of its symbolic value, the Texas court also decided that flag's special status was not endangered by Johnson's actions.

The court also concluded that that the flag-desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. The flag burning in this particular case did not threaten such a reaction. There were only a few witnesses to the act that stated that they were upset with the action but were not harmed in any way. There was no breach of peace nor does the record reflect that the situation was potentially explosive. Just because someone was seriously offended does not incite breaching of peace.

Texas claimed that its interest in preventing breaches of the peace justifies Johnson's conviction for flag desecration. But, the court found that no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag. Although the State stresses the disruptive behavior of the protestors during their march toward City Hall, it admits that "no actual breach of the peace occurred at the time of the flag burning or in response to the flag burning." In no way were Johnson's actions considered "fighting words" in which they might cause physical retaliation.

The court stated that, "nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it and to bring its argument outside our precedents, Texas attempts to convince us that even if its interest in preserving the flag's symbolic role does not allow it to prohibit words or some expressive conduct critical of the flag, it does permit it to forbid the outright destruction of the flag. The State's argument cannot depend here on the distinction between written or spoken words and nonverbal conduct. That distinction, we have shown, is of no moment where the nonverbal conduct is expressive, as it is here, and where the regulation of that conduct is related to expression, as it is here. Texas' focus on the precise nature of Johnson's expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea."

Johnson was convicted for engaging in expressive conduct. The State's interest in preventing breaches of the peace does not support his conviction because Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression. The judgment of the Texas Court of Criminal Appeals is therefore affirmed.

Justice Rehnquist delivered the dissenting opinion. The American flag throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what