Texas v. Johnson
491 U.S. 397 (1989)
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Rule of Law:
The First Amendment protects expressive conduct, including the burning of an American flag as political protest, from criminal prosecution by the states, because such a prohibition is a content-based restriction on speech not justified by a compelling governmental interest.
Facts:
- During the 1984 Republican National Convention in Dallas, Gregory Lee Johnson participated in a political demonstration protesting the policies of the Reagan administration.
- At the demonstration's conclusion in front of Dallas City Hall, Johnson unfurled an American flag, doused it with kerosene, and set it on fire while other protestors chanted, 'America, the red, white, and blue, we spit on you.'
- No one was physically injured or threatened by the flag burning, though several witnesses testified they were seriously offended.
- Johnson was charged and convicted under Texas Penal Code Ann. § 42.09(a)(3) for desecrating a venerated object, receiving a one-year prison sentence and a $2,000 fine.
- The Texas Court of Appeals affirmed Johnson's conviction, but the Texas Court of Criminal Appeals reversed, holding that the State could not, consistent with the First Amendment, punish Johnson for burning the flag under these circumstances.
- The State of Texas petitioned the U.S. Supreme Court for certiorari to review the decision of the Texas Court of Criminal Appeals.
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Issue:
Can a state, consistent with the First Amendment's protection of free speech, criminally punish an individual for burning the American flag as a means of political protest?
Opinions:
Majority - Justice Brennan
A state cannot, consistent with the First Amendment, criminally punish an individual for burning the American flag as a means of political protest. The Court found Johnson's flag burning to be 'expressive conduct' protected by the First Amendment, as there was an intent to convey a particularized message (protest of Reagan administration policies) and a high likelihood the message would be understood. Texas asserted two governmental interests: preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity. The Court concluded that the interest in preventing breaches of the peace was not implicated, as no actual or threatened disturbance occurred, and the mere fact that speech gives offense is not a basis for its prohibition. The interest in preserving the flag's symbolic value was deemed 'related to the suppression of free expression' because the Texas statute was designed to protect the flag from impairments that would cause serious offense, thus making it a content-based restriction. Such content-based restrictions are subject to 'the most exacting scrutiny' and are presumptively invalid. The Court held that the government cannot mandate respect for a symbol or prescribe what shall be orthodox in politics, nationalism, or other matters of opinion, even when that symbol is the American flag. The government's legitimate interest in encouraging proper treatment of the flag must be achieved through persuasion and example, not criminal compulsion, because punishing flag desecration dilutes the freedom the flag represents.
Dissenting - Chief Justice Rehnquist, with whom Justice White and Justice O’Connor join
A state can, consistent with the First Amendment, criminally punish an individual for burning the American flag as a means of political protest. Chief Justice Rehnquist argued that the American flag has occupied a unique and revered position as a national symbol for over 200 years, embodying the nation rather than any specific political philosophy. He contended that this unique status justifies governmental protection against flag burning. He likened flag burning to "fighting words" (as in Chaplinsky v. New Hampshire), which are not protected speech, describing it as an "inarticulate grunt or roar" meant to antagonize rather than express a particular idea forcefully. He highlighted that Johnson had numerous other avenues for expressing his dissent and was only punished for the specific method of desecrating a symbol that millions regard with "almost mystical reverence." He concluded that the public interest in avoiding a probable breach of the peace and protecting a national monument like the flag outweighed the minimal expressive value of burning it.
Dissenting - Justice Stevens
A state can, consistent with the First Amendment, criminally punish an individual for burning the American flag as a means of political protest. Justice Stevens argued that the American flag is a symbol of more than just 'nationhood and national unity'; it also represents fundamental ideas like freedom, equality, and religious tolerance, and possesses an "intangible dimension" that sets it apart from other symbols. He believed that the interest in preserving this invaluable symbol is both significant and legitimate, and that allowing its public desecration tarnishes its value for all. He contended that the burden on free expression imposed by prohibiting flag burning is 'trivial' given the availability of countless alternative modes of expression, including verbal criticism of the flag. Justice Stevens also argued that the Texas statute was not content-based because it targeted 'disagreeable conduct' (acts that would cause serious offense), not the substance of the message itself, thus implying it did not violate the government's obligation of neutrality regarding protected communication.
Concurring - Justice Kennedy
A state cannot, consistent with the First Amendment, criminally punish an individual for burning the American flag as a means of political protest. Justice Kennedy joined the majority opinion without reservation but wrote separately to acknowledge the personal difficulty and emotional toll of the decision. He recognized the flag's deeply revered status and the powerful arguments of the dissenters, particularly those who have served under the flag. However, he stated that the law and the Constitution, as interpreted by the Court, compelled this difficult result. He eloquently asserted that while symbols often derive meaning from us, the flag consistently expresses beliefs in law, peace, and freedom, and that 'it is poignant but fundamental that the flag protects those who hold it in contempt.' He concluded that Johnson's actions, however offensive, constituted speech in both its technical and fundamental sense, and therefore, he must be allowed to go free.
Analysis:
This case is a landmark decision that broadly expanded First Amendment protections to include expressive conduct, even when that conduct is profoundly offensive to a large portion of society. It solidified the principle that the government's interest in fostering national unity or respect for a symbol, however revered, generally cannot justify content-based restrictions on speech. The ruling established a high bar for such restrictions, requiring them to withstand 'the most exacting scrutiny,' meaning they must serve a compelling governmental interest and be narrowly tailored. This decision has had a lasting impact on free speech jurisprudence, particularly regarding symbolic expression and the limits of governmental authority to regulate speech based on its potential to offend or challenge societal norms.
