Texas v. Johnson
491 U.S. 397 (1989)

Annotate this Case

U.S. Supreme Court

Texas v. Johnson, 491 U.S. 397 (1989)

Texas v. Johnson

No. 88-155

Argued March 21, 1989

Decided June 21, 1989

491 U.S. 397

Syllabus

During the 1984 Republican National Convention, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a state court of appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding 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. The court concluded that the State could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. It also held that the statute did not meet the State's goal of preventing breaches of the peace, since it was not drawn narrowly enough to encompass only those flag burnings that would likely result in a serious disturbance, and since the flag burning in this case did not threaten such a reaction. Further, it stressed that another Texas statute prohibited breaches of the peace and could be used to prevent disturbances without punishing this flag desecration.

Held: Johnson's conviction for flag desecration is inconsistent with the First Amendment. Pp. 491 U. S. 402-420.

(a) Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent. Pp. 491 U. S. 402-406.

(b) Texas has not asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression and would therefore permit application of the test set forth in United States v. O'Brien, 391 U. S. 367, whereby an important governmental interest in regulating nonspeech can justify incidental limitations on First Amendment freedoms when speech and nonspeech elements are combined in the same course of conduct. An interest in preventing breaches of the peace is not implicated on this record. Expression may not be prohibited

Page 491 U. S. 398

on the basis that an audience that takes serious offense to the expression may disturb the peace, since the Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression. Johnson's expression of dissatisfaction with the Federal Government's policies also does not fall within the class of "fighting words" likely to be seen as a direct personal insult or an invitation to exchange fisticuffs. This Court's holding does not forbid a State to prevent "imminent lawless action" and, in fact, Texas has a law specifically prohibiting breaches of the peace. Texas' interest in preserving the flag as a symbol of nationhood and national unity is related to expression in this case and, thus, falls outside the O'Brien test. Pp. 491 U. S. 406-410.

(c) The latter interest does not justify Johnson's conviction. The restriction on Johnson's political expression is content based, since the Texas statute is not aimed at protecting the physical integrity of the flag in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others. It is therefore subject to "the most exacting scrutiny." Boos v. Barry, 485 U. S. 312. The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the Government may not permit designated symbols to be used to communicate a limited set of messages. Moreover, this Court will not create an exception to these principles protected by the First Amendment for the American flag alone. Pp. 491 U. S. 410-422.

755 S.W.2d 92, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 491 U. S. 420. REHNQUIST, C.J., filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p. 491 U. S. 421. STEVENS, J., filed a dissenting opinion, post, p. 491 U. S. 436.

Page 491 U. S. 399

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Primary Holding

The First Amendment protections on symbolic speech prevent states from banning desecrations of the American flag.

Facts

During a political demonstration in Dallas, Texas, Gregory ("Joey") Johnson gained possession of an American flag. The Revolutionary Communist Youth Brigade, to which he belonged, was vociferously protesting the policies of Ronald Reagan and certain corporations. The demonstration coincided with the Republican National Convention held in the city. At City Hall, Johnson poured kerosene on the flag and burned it as his fellow members chanted slogans that attacked the presidential candidates and the U.S. in general. Many onlookers were offended, although nobody was physically injured. Johnson was convicted of desecrating a venerated object under state law and sentenced to one year in prison as well as a fine.

Procedural History

Texas Court of Appeals - 706 S.W.2d 120 (Tex. App. 1986)

Conviction affirmed. The First Amendment does not protect activities such as desecrating the national flag.

Texas Court of Criminal Appeals - 755 S.W.2d 92 (Tex. Crim. App. 1988)

Reversed and remanded for dismissal. The First Amendment extends to expressive conduct, so the state cannot prohibit forms of symbolic political speech, such as flag burning.

Opinions

Majority

  • William Joseph Brennan, Jr. (Author)
  • Thurgood Marshall
  • Harry Andrew Blackmun
  • Antonin Scalia
  • Anthony M. Kennedy

Echoing precedents such as O'Brien v. U.S., Cohen v. California, and Tinker v. Des Moines, the majority reaffirmed that the First Amendment protects expressive conduct. To determine the line between mere action and communication, Brennan suggested that courts should consider whether the defendant intended to convey a specific message through the conduct, and whether it was likely that the audience would recognize this message for what it was. In this situation, he felt that both elements were satisfied. The demonstration coincided with the Republican National Convention, and the accompanying political chants clarified the message.

The defendant's conduct thus could be punished only if the state could show that it had a compelling content-neutral reason for suppressing it. Brennan found that there was no breach of the peace or imminent threat of such a breach that resulted from the flag burning, and he rejected the bad tendency test from early 20th-century jurisprudence. The state could not propose any other compelling interest, and in fact it is possible that no other interest could be proposed.

Concurrence

  • Anthony M. Kennedy (Author)
  • Sandra Day O'Connor

Kennedy did not add much substance to the doctrinal analysis but simply emphasized the high stakes on both sides and the importance of preserving constitutional protections, even if they may lead to distasteful results in certain situations. He pointed out that someone who shows contempt for the flag ironically retains its protections.

Dissent

  • William Hubbs Rehnquist (Author)
  • Byron Raymond White

While he shared the majority's respect for the First Amendment, Rehnquist thought that flag burning was a sufficiently unique and popularly reprehensible activity to justify making an exception to its protections. He argued that it did not express a meaningful message but was meant to provoke others. Rehnquist pointed out that people who burn flags have many other forms of speech and expressive conduct with which to deliver the same message.

Dissent

  • John Paul Stevens (Author)

Noting the difference between expressing an opinion and the means by which the opinion is expressed, Stevens agreed with Rehnquist that the defendant had other ways to convey his disapproval of contemporary politics. However, his opinion was more like Kennedy's concurrence in the sense that it was built more on evocative rhetoric than doctrinal analysis.

Case Commentary

This is an example of the symbolic speech, or expressive conduct, to which a lesser degree of First Amendment protections extend. Flag burning is still a divisive issue, even though Johnson struck down laws banning it across 48 states. Studies suggest that the majority of Americans believe that it should be illegal.

The federal Flag Protection Act of 1989 also made the conduct a federal crime, but this law was invalidated almost immediately in an opinion also written by Brennan and joined by the same group of Justices. Attempts by Congress to amend the Constitution to prohibit flag burning have succeeded in the House of Representatives but failed to pass in the Senate.

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