texas vs johnson case essay

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The first amendment, supreme court case, texas v. johnson (1989).

491 U.S. 397 (1989)

“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.”

Selected by

Caroline Fredrickson

Visiting Professor, Georgetown University Law Center and Senior Fellow at the Brennan Center for Justice

Ilan Wurman

Associate Professor, Sandra Day O'Connor College of Law at Arizona State University

In Texas v. Johnson , a divided Supreme Court held that burning the flag was protected expression under the First Amendment. The case was decided twenty years after the birth of the “counterculture” movement, fifteen years after the end of the Vietnam War, and in the midst of the Cold War, although that was soon coming to an end. Johnson was prosecuted for burning the flag in protest of what he believed to be the Reagan Administration’s aggressive Cold War policies.

Read the Full Opinion

Excerpt: Majority Opinion, Justice William Brennan

The First Amendment literally forbids the abridgment only of “speech,” but we have long recognized that its protection does not end at the spoken or written word. While we have rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” we have acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” . . . Hence, we have recognized the expressive nature of students’ wearing of black armbands to protest American military involvement in Vietnam; of a sit-in by blacks in a “whites only” area to protest segregation; of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam; and of picketing about a wide variety of causes.

Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. Attaching a peace sign to the flag, refusing to salute the flag, and displaying a red flag, we have held, all may find shelter under the First Amendment. . . . That we have had little difficulty identifying an expressive element in conduct relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol of our country . . . .

Johnson burned an American flag as part—indeed, as the culmination—of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. . . .

The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct  because  it has expressive elements. . . .

The State . . . asserts an interest in preserving the flag as a symbol of nationhood and national unity. . . .

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. We have not recognized an exception to this principle even where our flag has been involved. . . . [T]hat 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. . . .

We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation’s resilience, not its rigidity, that Texas sees reflected in the flag—and it is that resilience that we reassert today. . . .

Excerpt: Concurrence, Justice Anthony Kennedy

The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.

With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt. . . .

Excerpt: Dissent, Chief Justice William Rehnquist

In holding this Texas statute unconstitutional, the Court ignores Justice Holmes’ familiar aphorism that “a page of history is worth a volume of logic.” For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning . . . .

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 sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

More than 80 years ago . . . this Court upheld the constitutionality of a Nebraska statute that forbade the use of representations of the American flag for advertising purposes upon articles of merchandise. . . .

But the Court insists that the Texas statute prohibiting the public burning of the American flag infringes on respondent Johnson’s freedom of expression. Such freedom, of course, is not absolute. . . . [T]he public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace. Johnson was free to make any verbal denunciation of the flag that he wished; indeed, he was free to burn the flag in private. . . .

[H]is act, like . . . provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. As with “fighting words,” so with flag burning, for purposes of the First Amendment: It is “no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed” by the public interest in avoiding a probable breach of the peace. The highest courts of several States have upheld state statutes prohibiting the public burning of the flag on the grounds that it is so inherently inflammatory that it may cause a breach of public order. . . .

The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest—a form of protest that was profoundly offensive to many—and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy. Thus, in no way can it be said that Texas is punishing him because his hearers—or any other group of people—were profoundly opposed to the message that he sought to convey. Such opposition is no proper basis for restricting speech or expression under the First Amendment. It was Johnson’s use of this particular symbol, and not the idea that he sought to convey by it or by his many other expressions, for which he was punished. . . .

Excerpt: Dissent, Justice John Paul Stevens

The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might enlarge the market for free expression, but at a cost I would not pay. Similarly, in my considered judgment, sanctioning the public desecration of the flag will tarnish its value—both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression—including uttering words critical of the flag—be employed.

It is appropriate to emphasize certain propositions that are not implicated by this case. The statutory prohibition of flag desecration does not “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”  The statute does not compel any conduct or any profession of respect for any idea or any symbol. . . .

The content of respondent’s message has no relevance whatsoever to the case. The concept of “desecration” does not turn on the substance of the message the actor intends to convey, but rather on whether those who view the  act  will take serious offense. . . .

The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for—and our history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.

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Texas v. Johnson

Closed Expands Expression

• Key details

Key Details

• Mode of Expression Non-verbal Expression
• Date of Decision June 21, 1989
• Outcome Affirmed Lower Court, Acquittal
• Case Number 491 U.S. 397
• Region & Country United States, North America
• Judicial Body Supreme (court of final appeal)
• Type of Law Criminal Law, Constitutional Law
• Themes Political Expression
• Tags Content-Based Restriction, National Symbols

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Case Analysis

Case summary and outcome.

The U.S. Supreme Court, in a controversial 5-4 decision, held that burning the American flag was symbolic speech protected under the First Amendment, thus affirming the reversal of the appellant’s conviction. Gregory Lee Johnson burned an American flag as part of a political demonstration during the 1984 Republican National Convention. He was convicted and sentenced to one year in prison with a fine of $2,000 for violating a Texas penal code that prohibits the desecration of a venerated object. The Court reasoned that Johnson’s burning of the flag was expressive conduct protected by the First Amendment and that the State could not criminally sanction flag desecration to preserve the flag as a symbol of national unity.

Gregory Johnson participated in a political demonstration to protest against the policies of the Reagan administration and of a number of local corporations during the 1984 Republican National Convention in Dallas. Toward the end of the protest Johnson set light to an American flag that he had been given by another protester. While the flag was burning, the protesters chanted, “America, the red, white, and blue, we spit on you.” [p. 399] Even though his act did not prompt any physical altercations or injuries, some witnesses were seriously offended by the flag burning.

Johnson was later arrested and charged with desecrating a venerated object under section 42.09(a)(3) of the Texas Penal Code. A state court then convicted him of the crime and sentenced him to one year in prison with a fine of $2,000. In 1986, the Court of Appeals for the Fifth District of Texas affirmed his conviction, but two years later the state’s Court of Criminal Appeals reversed it, holding that his act of burning the flag was symbolic speech protected under the First Amendment.

The State appealed the reversal order and, because the lower courts did not address whether the statute pursuant to which Johnson was convicted was unconstitutional on its face, the U.S. Supreme Court granted certiorari.

Decision Overview

Justice Brennan delivered the majority opinion of the Court.

The Court first had to decide whether Johnson’s flag burning constituted expressive conduct enabling him to invoke his First Amendment protection. In so doing the Court had to consider whether the  act had sufficient communicative elements to fall within the right to free speech protected by the First Amendment and to assess “whether an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” [p.404] The Court said that not every conduct associated with a flag or emblem is expressive conduct but determined that Johnson’s act qualified as expressive conduct because it occurred as part of a political demonstration and that “the expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent.” [p. 406]

The Court then had to decide what level of scrutiny to apply in assessing the constitutionality of the impugned statute under the First Amendment. If the provision related to the expression itself, it had to withstand a more heightened level of scrutiny. According to the Court, “a law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires.” [p. 406] On the other hand, a lower level of scrutiny applies when government interference is unrelated to the suppression of expression.

In this case, Texas argued two separate interests to justify Johnson’s conviction: preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity. On the breach of peace argument, the Court reasoned that the act of flag burning was not intended to incite or produce imminent unlawful action. Nor did it fall under the classification of fighting words, unprotected under the First Amendment. Therefore, the Supreme Court reasoned, that the facts of the case did not evidence the State’s interest in maintaining order. As to the second justification, the Court had little problem viewing it as directly related to the suppression of expression because the state’s concern that burning the flag would lead people to be less positive about the ideal of unity could only be realized if the treatment of the flag communicated some message.

The Court then addressed whether the State’s interest in preserving the flag as a symbol of nationhood and national unity justified Johnson’s conviction. The Court reaffirmed its jurisprudence on the First Amendment stating that “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.” [p. 414] The Court referred to Street v. New York , 394 U.S. 576 (1969) where it had ruled that “a State may not criminally punish a person for uttering words critical of the flag” and, similarly in  West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943) where it had held that a state may not compel conduct that would evince respect for the flag.  On this basis the Court emphasized that  “nothing in our precedents suggests that a state may foster its own view of the flag by prohibiting expressive conduct relating to it.” [p. 416] It reasoned that “to conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries.” [p. 417]

Accordingly, the Court majority affirmed the judgment of the Texas Court of Criminal Appeals.

Dissenting opinions

Chief Justice Rehnquist, joined by Justice White and Justice O’Connor, delivered a dissenting opinion in which he argued that the American flag, with more than 200 hundred years of history, “has occupied a unique position as the symbol of [the U.S.], a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did.” [p. 422] He backed up his opinion with a review of the laws passed by Congress and states regulating misuse of the American flag. He also disagreed with the majority’s characterization of Johnson’s act of flag burning as a form of symbolic speech protected under the First Amendment. He argued that the public burning of the flag by Johnson was “no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace.” [p. 430]

Justice Stevens also dissented with the majority arguing that the case had nothing to do with Johnson’s political opinions. Rather, he said, the statute merely aimed at Johnson’s conduct which had diminished “the value of an important national asset.” In Justice Steven’s view, the majority was quite wrong in not assessing the method he chose to express his dissatisfaction.

Decision Direction

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The decision expands expression by ruling that a Texan state law criminalizing flag desecration in order to preserve the flag as a symbol of national unity was inconsistent with the First Amendment.

Global Perspective

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence.

• U.S., Constitution of the United States (1789), First Amendment.
• U.S., Tinker v. Des Moines Indep. Cmty. School Dist., 393 U.S. 503 (1969)
• U.S., United States v. Grace, 461 U.S. 171 (1983)
• U.S., Stromberg v. California, 283 U.S. 359 (1931)
• U.S., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984)
• U.S., Cmty. for Creative Non-Violence v. Watt, 703 F.2d 586 (D.C. 1983)
• U.S., City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989)
• U.S., Schacht v. United States, 398 U.S. 58 (1970)
• U.S., Brown v. Louisiana, 383 U.S. 131 (1966)
• U.S., Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)
• U.S., Spence v. Washington, 418 U.S. 405 (1974)
• U.S., United States v. O’Brien, 391 U.S. 367 (1968)
• U.S., Brandenburg v. Ohio, 395 U.S. 444 (1969)
• U.S., Boos v. Barry, 485 U.S. 312 (1988)
• U.S., Hustler Magazine, Inc., v. Falwell, 485 U. S. 46 (1998)
• U.S., Street v. New York, 394 U.S. 576 (1969)
• U.S., Cox v. Louisiana, 379 U.S. 536 (1965)
• U.S., FCC v. Pacifica Found., 438 U.S. 726 (1978)
• U.S., Coates v. City of Cincinnati, 402 U.S. 611 (1971)
• U.S., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
• U.S., Cantwell v. Connecticut, 310 U.S. 296 (1940)
• U.S., City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)
• U.S., Carey v. Brown, 447 U.S. 455 (1980)
• U.S., Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)
• U.S., Buckley v. Valeo, 424 U.S. 1 (1976)
• U.S., Grayned v. City of Rockford, 408 U.S. 104 (1972)
• U.S., Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972)
• U.S., Bachellar v. Maryland, 397 U.S. 564 (1970)
• U.S., Abrams v. United States, 250 U.S. 616 (1919)
• U.S., Whitney v. California, 274 U.S. 357 (1927).
• U.S., San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 (1987)
• U.S., Halter v. Nebraska 205 U.S. 34 (1907)
• U.S., Smith v. Goguen 415 U.S. 566 (1974)
• U.S., Terminiello v. Chicago, 337 U.S. 1 (1949)
• U.S., Food Employees v. Logan Valley Plaza, Inc. 391 U.S. 308 (1968)

Case Significance

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision was cited in:.

• Wollschalaeger v. Governor of Florida
• Laurence Nathan Levy v. The State of Victoria & Ors
• Gifford v. McCarthy
• Holder v. Humanitarian Law Project
• Virginia v. Black
• Stuart v. Camnitz
• Bible Believers v. Wayne County
• Case of Jaume Roura and Enric Stern
• Barboza v. D’Agata
• Masterpiece Cakeshop v. Colorado Civil Rights Commission
• United States Telecom Association v. FCC
• Barnes v. Glen Theatre, Inc.
• Former Governor of the State of Aguascalientes v. General Director of the Newspaper “Tribuna Libre la Voz del Pueblo”
• R.A.V. v. City of St. Paul
• United States v. Eichman
• Union of India v. Jindal
• Fields v. City of Philadelphia
• State v. Arlene’s Flowers, Inc.
• Matal v. Tam
• Attorney General v. Clarke
• Department of Fair Employment and Housing v. Cathy’s Creations
• Koontz v. Watson
• Pennsylvania v. Knox
• Amawi v. Pflugerville Independent School District
• Afriforum NPC v. Nelson Mandela Foundation Trust
• WASHLITE v. Fox News
• Otto v. City of Boca Raton
• Grigoriades v. Greece
• United States of America v. Ethan Nordean
• Roy and Kayla Moore v. Sacha Baron Cohen

Official Case Documents

Official case documents:.

• Judgment https://www.law.cornell.edu/supremecourt/text/491/397

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TEXAS v. JOHNSON

Sample case s and case brief s :.

The following is one of two landmark First Amendment cases. It is edited for easier reading, which is called a case syllabus. The original texts of this case is much longer and more difficult to read. Following is a sample case brief.

Texas v. Johnson

491 u.s. 397 (1989).

(Case Syllabus edited by the Author)

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.

(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.

(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 non-speech can justify incidental limitations on First Amendment freedoms when speech and non-speech 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 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.

(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.

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. REHNQUIST, C.J., filed a dissenting opinion, in which WHITE and O’CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion.

SAMPLE CASE BRIEF FOR TEXAS V. JOHNSON :

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

Mr. Johnson publicly burned an American flag during a political demonstration. He was arrested and convicted of violating a Texas penal code prohibiting the desecration of “a venerated object”, in other words, the American Flag.

PROCEDURAL HISTORY:

The Texas Court of Appeals affirmed the trial court verdict. The Texas Court of Criminal Appeals reversed. The U.S. Supreme Court granted certiorari.

Whether the First Amendment, which protects freedom of speech, is violated when a person is convicted for burning an American flag during a political demonstration?

Yes. The First Amendment, which protects freedom of speech, is violated when a person is convicted for burning an American flag during a political demonstration.

REASONING: While the First Amendment literally forbids the abridgment only of “speech,” the Court has previously held that it also protects conduct when conduct is “sufficiently imbued with elements of communication.” Here Johnson’s flag burning was part of a political demonstration, and therefore was the type of conduct meant to be protected as speech. The Court also rejected the state’s two arguments. First, there was no evidence on the record that Johnson’s conviction was necessary to prevent a breach of the peace. No breach of the peace actually occurred, and his conduct did not fall into the “fighting words” exception. Second, the state claimed that it has an interest in preserving the flag as a symbol of national unity. However, if that means prohibiting the type of expression that occurred in this case, then the government is enforcing its own political preferences, something the First Amendment prohibits. The Court actually suggested that its holding will strengthen, and not weaken, our loyalty to the flag.

• Adaptation of Understanding New York Law, 2013-14 Edition. Authored by : Michael H. Martella, Esq., David Pogue, Elizabeth Clifford and Alan L. Schwartz. Provided by : published by Upstate Legal Publishers. License : CC BY: Attribution . License Terms : Adapted and republished with permission

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Texas v. Johnson

Following is the case brief for Texas v. Johnson, Supreme Court of the United States, (1989)

Case Summary of Texas v. Johnson:

• Johnson was arrested for burning an American flag at a political rally in violation of a Texas statute which prohibited public desecration of the flag.
• Johnson then appealed to the Court of Criminal Appeals, who reversed his conviction and the case was petitioned to the Supreme Court of the United States.
• The Supreme Court held that the right to burn the American flag in political protest was protected under the First Amendment right to freedom of speech .

Texas v. Johnson Case Brief

Statement of the Facts:

Gregory Lee Johnson was convicted for desecrating a flag after publically burning an American flag in political protest at a Republican rally. Johnson then challenged his conviction under the Texas state law in a state court claiming the law violated his First Amendment right to freedom of speech.

Procedural History:

The Court of Criminal Appeals in Texas reversed Johnson’s conviction. The United States Supreme Court granted certiorari.

Issue and Holding:

Does a state statute that criminalizes the burning of an American flag in political protest violate the First Amendment? Yes.

Rule of Law or Legal Principal Applied:

The First Amendment prevents a state from criminalizing the burning of an American flag as a means of political protest.

The Supreme Court affirmed the judgment of the Court of Criminal Appeals.

The Court first determines it is necessary to determine whether or not Johnson’s conduct was expressive conduct. If it is, then Johnson would be permitted to invoke his First Amendment right.

If the conduct is expressive then the Court must determine whether the state’s law is related to suppressing free expression. If on the contrary, conduct is not expressive, the Court must apply the analysis for non-communicative conduct established in the United States v. O’Brien , 391 U.S. 367 (1968) decision.

To appropriately determine if the O’Brien test applies, the Court must determine if Texas claims as interest in supporting Johnson’s convictions unrelated to suppressing expression.

The two interests stated are: preventing a breach of the peace and preserving the flag as a symbol of nationhood and national unity. Since no disturbance of the peace actually occurred because of the flag burning this reason is irrelevant.  Preserving the flag for the stated purposes is related to the suppression of expression because Texan is concerned flag burning may lead people to believe the flag does not stand for national unity and nationhood or that the nation is not unified. O’Brien is not applicable.

Johnson was convicted because of his expression of dissatisfaction with the policies of his country. The interest in preserving the special symbolic character of the flag is subject to the most exacting level of scrutiny. Precedent does not suggest a state may promote its view of the flag through prohibiting the expressive conduct of its citizens.

The principle that the government cannot prevent expression it disagrees with is not contingent on the particular method one seeks to express an idea. As a result, it would be inconsistent to hold an individual is free to express disagreement with a political viewpoint in any manner except flag burning.

It is nonsensical to allow a state to permit flag burning in some instances and not others as such a principle lacks discernable or defensible boundaries. As a result, the First Amendment cannot support Johnsons’s conviction of flag burning for the purpose of political expression.

The Court further stated that the best way to respond to the burning of an American flag is waving their own.

This judgment does not weaken the flag’s status in the American society. Instead, it strengthens its status, portraying it as a symbol of free expression on which the U.S. democratic system of governance is based.

Concurring and Dissenting opinion :

Dissenting (Rehnquist):

The American flag has a unique and symbolic place in the U.S. There is no other symbol more honored and respected. Historically it has become an embodiment of the U.S. There is no specific political party, point of view or political philosophy affiliated with the flag. As a result, it is unlikely that the First Amendment permits flag burning as a protected form of speech. Many find flag burning offensive even when used in the context of political protest. Johnson many express his opinions in other forms and the state statute is constitutional.

Dissenting (Stevens):

This case begs the question whether the state or federal government has the power to ban public desecration of the flag.  Since the flag is a unique symbol of respect, basic rules applying to other symbols do not apply to the American flag. The argument that flag burning is a protected form of freedom of expression is unpersuasive because the costs of protecting such a form of freedom are too great. Protecting desecration of the flag does not further the protection of freedom of expression.

Significance:

Texas v. Johnson was the landmark case which established the right of American’s to burn an American flag as a symbol of expression and stressed the importance of the First Amendment freedom of expression.Prior to this decision, the answer was very unclear.

Student Resources:

http://www.pbs.org/wnet/supremecourt/timeline/1989.html https://www.law.cornell.edu/supremecourt/text/491/397

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Home » Articles » Case » Expressive Conduct / Symbolic Speech » Texas v. Johnson (1989)

Texas v. Johnson (1989)

Written by J. Michael Bitzer, published on January 1, 2009 , last updated on April 27, 2024

Gregory Lee Johnson, right, with his attorney circa 1989. Johnson was convicted under a Texas law for burning an American flag. The Supreme Court overturned the law in Texas v. Johnson for violating First Amendment freedom of expression. (Image via Wikimedia Commons, CC BY-SA 3.0)

In Texas v. Johnson, 491 U.S. 397 (1989) , the Supreme Court struck down on First Amendment grounds a Texas flag desecration law. The 5-4 decision has served as the center point of a continuing debate regarding the value of free speech as exercised through the burning of the U.S. flag as a form of political protest.

Johnson convicted under Texas law for burning American flag

During the 1984 Republican National Convention in Dallas, Gregory Lee Johnson participated in protests against the Reagan administration’s policies and the nomination of President Ronald Reagan for a second term. Culminating the protests, Johnson doused a U.S. flag with kerosene and set it on fire. After the flag was burned, a witness gathered the flag’s remains to bury them.

Of the 100 demonstrators gathered, only Johnson was charged with violating a Texas state law, which made desecrating the national flag a criminal offense. Johnson was convicted, but the Texas Court of Criminal Appeals overturned his conviction. Texas then appealed to the Supreme Court.

Flag burning is expressive conduct protected by First Amendment

Writing for the majority, Justice William J. Brennan Jr. noted that expressive conduct is protected by the First Amendment, and that the government’s interests in protecting the flag did not trump the right to engage in political speech. Texas argued that the state was seeking to prevent breaches of the peace and to preserve the flag as “a symbol of nationhood and national unity,” but the Court rejected the application of the “ fighting words ” doctrine and the governmental interest in protecting a symbol. Brennan argued that it “would be odd . . . that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.” Brennan held that Johnson was charged and convicted for “his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.”

Dissenters focused on the value of the flag

In his dissent, Chief Justice William H. Rehnquist , after providing a lengthy history of the role of the U.S. flag in American life, held that the burning of the flag is akin to “fighting words.” In his dissent, Justice John Paul Stevens , a World War II veteran, was troubled by the possible devaluing of the flag’s symbolic nature . Noting that if a federal right to post bulletin boards and graffiti to “enlarge the market for free expression” meant defacing the Washington Monument, Stevens would not allow it; thus, he reasoned, “sanctioning the public desecration of the flag will tarnish its value.”

The Supreme Court reaffirmed Texas v. Johnson a year later in United States v. Eichman (1990) , when it struck down the Flag Protection Act of 1989 , which Congress enacted in response to the 1989 decision. Since this ruling, the issue of flag burning has been a repeated target of congressional attempts to overturn the Court’s decision via constitutional amendment. In summer 2006, the Senate fell a single vote shy of the 67 votes needed to propose the amendment to the states.

This article was originally published in 2009. J. Michael Bitzer is a professor of politics and history at Catawba College in North Carolina.

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

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

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.

• 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.

• 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.

• 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.

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.

U.S. Supreme Court

Texas v. Johnson

Argued March 21, 1989

Decided June 21, 1989

491 U.S. 397

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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Talking Points - Texas v. Johnson

Question: Is flag burning protected as symbolic speech by the First Amendment?

1. Can the government prohibit the act of flag burning as an infringement on the Free Speech Clause of the First Amendment?

Affirmative. Yes.

The Court has interpreted the First Amendment to grant a higher level of protection to speech than it grants to conduct because not all conduct is considered a form of speech. The First Amendment does protect symbolic speech, but some actions do not always rise to the level of “symbolic speech” so as to require protection under the First Amendment. Flag burning is the destruction of a symbol of national unity. Even if the flag that is destroyed is private property, the government has a legitimate interest in regulating its protection because of what the flag represents to the nation. Lines must be drawn when it comes to expressive speech to make sure that otherwise criminal conduct is not couched in “First Amendment” terms.

Negative. No.

The Court has recognized that the First Amendment protects certain forms of symbolic speech. Flag burning is such a form of symbolic speech. When a flag is privately owned, the owner should be able to burn it if the owner chooses, especially if this action is meant in the form of protest. So long as public and/or the property of others is not destroyed in the process (or there is a danger to others by setting the flag on fire), the government cannot prohibit this action without infringing upon free speech rights.

2. Should flag burning as symbolic speech be prohibited as an exception to the First Amendment’s free speech protections?

Even though the First Amendment protects symbolic speech, an exception should be made to prohibit burning of the flag. The flag is a symbol of national unity that represents the ideals for which the United States stands. Moreover, it honors those who died in defense of this country. The protection of these concepts, as represented in the flag, constitute a compelling governmental interest that justifies a ban on flag burning/desecration.

As noble as the argument is, the First Amendment does not recognize an exception for prohibitions on burning the flag. When the defendant burned the flag in this case, he was making a political statement, i.e., he did not agree with the policies of the United States government. Moreover, as ironic as it sounds, by being able to burn the flag, the defendant (and other persons like him) is actually honoring the values the flag is meant to protect. For instance, the flag represents freedom of speech, including giving protections to those who desecrate it. On a more practical note, why should this one action be excepted from the First Amendment’s protections? Could, or should, other exceptions be made? Who would make these decisions?

3. Should the allowance of flag burning depend upon the reasons for, and potential reactions to, the act?

The Texas Act permits the destruction of worn-out flags in a prescribed manner. The Act also acknowledges that prosecutions of flag-burning only occur when this action would be likely to offend others. Although it is argued that the state may have an absolute right to prohibit flag burning, Texas has chosen to limit its proscriptions. For instance, it would permit private burnings, perhaps even in the midst of like-minded individuals. It does not, however, permit flag burning in public when this would be likely to incite others. The state realizes that this action triggers strong emotions in some and may lead to violence. The State has a compelling interest in prohibiting flag burning in order to keep the peace. The State permits respectful burnings of worn-out flags because there is not much chance that this action will lead to violent outbursts.

The Texas Act clearly discriminates on the basis of viewpoint. It allows respectful, but not disrespectful, destruction of the flag. Its antipathy toward disrespectful destruction of the flag is further highlighted by the fact that it prohibits actions that are likely to offend others. First Amendment rights cannot be based on the reaction of others. The First Amendment is meant to protect unpopular ideas. The First Amendment would be undermined if unpopular speech were disallowed.

United States v. Eichman , 496 U.S. 310 (1990)

The Johnson decision only affected a Texas state law. In the wake of the decision, the federal government enacted a law that also prohibited flag burning. In order to try to get around constitutional challenges, the law prohibited all types of flag desecration, with the exception of burning and burying a worn-out flag, regardless of whether the action upset others. The Supreme Court held that this did not cure the constitutional defect and the same 7-3 majority from Johnson held that the law still impermissibly discriminated upon viewpoint and struck it down.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

Texas vs. Johnson: Landmark of US Supreme Court

Introduction, works cited.

It is known that judicial decisions in countries with precedent law are recorded and stored, since they, as precedents, form the basis of subsequent decisions. Thus, the US Supreme Court has repeatedly recognized the legality of restrictions or even the complete prohibition of such types of “speech” as obscenity, child pornography, propaganda, or instigating statements that threaten to immediately and inevitably turn into violence or illegal actions (Abrams 22-26; Smith 8-11).

The First Amendment does not mean that freedom of speech or press in the United States is absolute and is not subject to any restrictions. Some types of speech, i.e., ways to exercise freedom of speech, are strictly prohibited, while others are subject to regulation depending on where the author wants to make this speech, print, or “depict” (Yassky 1671-1672). However, the Texas v Johnson case, considered by the US Supreme Court thirty years ago, is on the list of Supreme Court decisions that have had the greatest impact on American society regarding the application of the First Amendment.

This decision is that (in legal terms) that symbolic acts, even those of a violent nature, have a right to exist because they are a manifestation of freedom of speech protected by the First Amendment to the US Constitution. In ordinary language, it means that guarantees of freedom of speech in the USA include the right to stomp or burn the American national flag.

In August 1984, the Republican Party National Convention was held in Dallas, Texas, which was electing a candidate for president of the United States. As always, a crowd of protesters against the policies of Ronald Reagan gathered near the convention hall, including Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade – a unit of the Revolutionary Communist Party of the United States. About a hundred protesters with slogans moved from the convention hall towards the City Hall.

Protesters walked through the streets of the city, playing protest scenes against nuclear weapons. One of the participants removed the American flag from the pole and handed it to Johnson. The procession approached the city government building, where Johnson unfolded the flag and set it on fire, chanting: “Red, white and blue, we spit on you, you stand for plunder, you will go under” (Kurtyka). As witnesses later claimed, many of them were offended by the performance of Gregory Lee, but no one was injured and or felt any threats in his behavior (Krüdewagen 680-681).

The police arrested Gregory Lee and the court found him guilty of violating Article 42.09 (a) (3) of the Texas Criminal Code, which prohibited desecration of revered objects and sentenced him to one year in prison and a fine of $2,000 (Fishman 47-49). Johnson appealed to the Texas Court of Appeals, where he lost.

His next appeal was directed to the Texas Criminal Appeals Court, which ruled in favor of Johnson, stating that Texas does not have the right to punish citizens for burning the flag, as such an act is a symbolic speech and, therefore, is protected by the First Amendment to the Constitution. The court also noted that burning the flag did not entail any public disturbance or even threaten with it (Goldstein 40).

After Johnson’s victory in the Texas Criminal Appeals Court, Texas’s state representatives said that maintaining order and protecting the symbol of national unity is more important than the right to freedom of speech (Fishman 50). They appealed the decision of the Court of Appeal to the US Supreme Court. The Supreme Court upheld the annulment of the first-instance conviction; however, the opinions of judges were divided.

Most of them felt that in the case of burning the national flag, the main reason is the motive for the act. If Johnson had committed his action for any mercantile motives or cynically violated public order for nihilistic reasons, his motives could have been the basis of the crime (Smith 52-60). But, in this case, at the core of Johnson’s act, as the Supreme Court considered, there were his views that do not accept the existing order of things in the state, namely, partial rejection of the policy of the US Presidential Administration. This motive, according to the court, distinguishes a civil action from a crime ( Texas v. Johnson ; Goldstein 34). Interestingly, this decision led to the repeal of laws prohibiting the burning of the American flag in 48 US states.

According to Supreme Court Judge Brennan, one of the fundamental principles of the First Amendment is that the government cannot prohibit the expression of any ideas even when society finds these ideas offensive or unacceptable (Miller 20-21). The Court noted that the First Amendment protects the fundamental principle that authorities have no right to prohibit people from expressing their views simply because someone considers the chosen way of expressing their opinion offensive to themselves. However, some judges said that freedom of expression and the way of expression were not the same things (Barker 53-54). The requirement to choose any form of protest, except for those that offended the feelings of other people, was not such a serious limitation.

Indeed, at the trial of the Texas state court of the first instance, several witnesses stated that they were offended by Johnson’s burning of the national flag and the court, recognizing Johnson as guilty, proceeded from the fact that “when performing this act, the performer knew that he was insulting the witnesses of his act and those who will later find out about it” (Goldstein 54). Three months after the hearing of the parties, the Supreme Court made a decision. With five votes to four, the Court ruled that the Texas Flag Burning Act violates the constitutionally guaranteed freedom of speech ( Texas v. Johnson ). Brennan wrote the majority’s decision, which was joined by panel members Marshall, Blackman, Scalia, and Kennedy.

Kennedy also presented a note on concurring opinions, but in order to note that “sometimes we have to make decisions that we ourselves don’t like” (Smith 32). Supreme Court President Rehnquist, who wrote a dissenting opinion, said that Texas state law was constitutional and was joined by members of the board White and O’Connor. Collegium member Stevens voted along with this minority, but explained his decision in a separate dissenting opinion, noting that the national flag is not only a symbol of statehood and national unity but also expresses ideas and characterizes the society that has chosen this problem (Amar 42).

After that, there were several attempts in Congress to pass an amendment to the Constitution protecting the national flag, but each time the Senate rejected it. Opponents of the ‘innovation’ believe that the restriction of the First Amendment cannot be allowed. Lawmakers in the United States have repeatedly tried to impose penalties for the desecration of a state flag, but so far all attempts have failed.

In 2016, Johnson again burned the flag during the Republican Party convention in Cleveland, which nominated Donald Trump for the presidency. During this action, Johnson was arrested; he later obtained $ 225,000 in compensation from the Cleveland authorities for an unjustified arrest (“Cleveland to pay $225K to 2016 RNC protester Gregory Johnson”).

On November 29, 2016, President Donald Trump proposed punishing by the deprivation of citizenship demonstrators who burned the American flag during the protests. In response, the media rained down on him with accusations of violating the constitution, and the protesters themselves burned several more flags in response. Many media outlets claimed that the United States Supreme Court when it heard the Texas v. Johnson case in 1989, found that the right to burn a flag was protected by the first constitutional amendment, as it was a kind of expression of freedom of speech.

Indeed, as in 1989, the U.S. Supreme Court ruled that flag burning is permitted under the First Amendment, which guarantees freedom of speech, to change a Supreme Court ruling, either amending the First Amendment or initiating a re-examination of the matter by the Supreme Court are needed. In view of the acute social and political problems faced by American society in the last decade, unlikely that a serious resumption of discussion about the acceptability of burning or other desecration of the national flag can be expected.

However, in addition to the “black letter law,” one should recall the concept of public benefit or harm. In no country in the world desecration of the national flag is approved (Allen 15). Attitude to state symbols is an indicator of the level of patriotism of citizens, their commitment to national values. Accepting the desecration of the national flag as quite an acceptable action erodes these values and offends the memory of the fighters for American colonies’ independence in the Revolutionary War.

This is the flag of people who fought for the country so that other people have the right to freely express their thoughts. Americans are already accustomed to the desecration of the flag, which often occurs during protests in the Islamic world. The desecration of the flag by their own citizens “helps” the Islamists and other representatives of extremist movements in the formation of a disrespectful attitude to traditional American values, on which the country’s greatness and its position in the international arena are largely based.

In our opinion, the Supreme Court made a serious ‘strategic’ mistake, allowing the humiliating of national symbols, and the implications of it can be seen today. Of course, the founding fathers considered it necessary to limit the power of the government. The First Amendment was ratified in order to remove the widespread concern about the hypothetical possibility of the government suppressing political dissent.

However, one thing is the struggle for civil rights, when the courts defended the right of Martin Luther King to protest against injustice and racial segregation, without calling for violence. A completely different matter is today’s racist and insulting statements by representatives of “white nationalism.” Hate speech is fully protected by the First Amendment, which the Supreme Court confirmed with its statement in 2017. Today, racist and insulting statements are not uncommon on the Internet, being protected by the First Amendment.

In general, almost all the freedoms guaranteed by the First Amendment now cause much more controversy than before. This is not surprising given the decisions of the Supreme Court on cases such as Texas v Johnson. Obviously, judges who voted in favor of Johnson did not take into account the far-reaching consequences of their decision and were unlikely to fully realize their responsibility as creators of a precedent in such cases. Meanwhile, the outcome of this case can be considered a kind of catalyst for upsetting the balance between freedom and public and even national security.

Abrams, Floyd. The Soul of the First Amendment . Yale University Press, 2018.

Allen, David S. Freeing the First Amendment: Critical Perspectives on Freedom of Expression. NYU Press, 1995.

Amar, Vikram David. The First Amendment, Freedom of Speech: Its Constitutional History and the Contemporary Debate . Prometheus, 2009.

Barker, Nicholas. “The Constitutionality of Flag Burning: Hate or Free Speech? An Analysis of Texas v. Johnson.” Hinckley Journal of Politics , Spring 2001, pp. 49-56.

Brennan, William J., Jr, and Supreme Court of the United States. U .S. Reports: Texas v. Johnson , 491 U.S. 397. 1989 . 

“ Cleveland to pay $225K to 2016 RNC protester Gregory Johnson, for retaliation claims. ” The Chandra Law Firm, LLC , 2019. 

Fishman, Donald A. “The Flag burning Controversy and the Sui Generis Argument.” New Jersey Journal of Communication , vol. 9, Iss. 1, 2001, pp. 45-62.

Goldstein, Robert Justin. Flag Burning and Free Speech: The Case of Texas v. Johnson. University Press of Kansas, 2000.

Krüdewagen, Ute. “Political Symbols in Two Constitutional Orders: The Flag Desecration Decisions of the United States Supreme Court and the German Federal Constitutional Court.” Arizona Journal of International and Comparative Law , vol.19, no. 2, 2002, pp. 679-712.

Kurtyka, Brian M. “ Recent Developments: Texas v. Johnson: Flag-Burning as Protest Protected within Context of First Amendment ,” University of Baltimore Law Forum , Vol. 20, No. 1, 1989, Article 10.

Miller, Anthony. Texas V. Johnson: The Flag-Burning Case . Enslow Pub Inc., 1997.

Smith, Craig R. A First Amendment Profile of the Supreme Court. John Cabot University Press, 2011.

Yassky, David S. “Eras of the First Amendment.” Columbia Law Review , vol. 91, 1991, pp. 1699-1755.

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Texas v. Johnson Argumentative Essay

The Texas v Johnson case took place outside the conference core the place the 1984 Republican National Convention was once taking location in Dallas, Texas, Gregory Lee Johnson burnt an American flag. He was once convicted and charged with violating a Texas regulation that prohibited a revered object, like the American flag, from being desecrated if such an motion was once probably to provoke others to outrage. Johnson was once charged earlier than a Texas choose and sentenced. He appealed, alleging that the First Amendment shielded his acts as "symbolic speech". It used to be determined to hear his enchantment by way of the Supreme Court. On January sixth congress used to be to meet to certify the electoral votes for the president. While Trump used to be talking Black Lives Matter broke into the capitol and vandalized more than one rooms at some stage in the building. The Black Lives Matter used to be paid with the aid of the democrats to destroy into the capitol and to gown up as trump supporters so that it would show up on the information that Trump supporters stormed the capitol.

Since burning an American flag overtly in democratic outrage at a Republican rally, Gregory Lee Johnson used to be arrested for desecrating a flag. Johnson additionally puzzled his conviction in a federal courtroom underneath Texas country law, arguing that the regulation violated his proper to freedom of speech underneath the First Amendment. As you can tell, Johnson started out it through burning the flag and getting caught doing it. The supreme courts arguments have been that burning the American flag “is an act having a excessive possibility to reason a breach of the peace.” There closing selection used to be a reaffirmation of the beliefs of liberty and inclusiveness high-quality expressed by means of the flag and of the view that our grasp of criticism such as Johnson's is a image and supply of our strength. “The First Amendment actually forbids the abridgment solely of 'speech,' however we have lengthy identified that its safety does no longer give up at the spoken or written word.”-(Brennan)

On January 6, 2021, U.S. President Donald Trump advised supporters to meet at the U.S. Capitol to strive to urge representatives of Congress to droop the formal technique that will affirm the presidency of Biden. On that day, congress used to be to meet to certify the electoral votes for the president. While Trump was once speakme Black Lives Matter broke into the capitol and vandalized more than one rooms at some stage in the building. The Black Lives Matter used to be paid by using the democrats to destroy into the capitol and to gown up as trump supporters so that it would show up on the information that Trump supporters stormed the capitol. U.S. President Donald Trump informed supporters to meet at the U.S. Capitol to attempt to urge representatives of Congress to droop the formal technique that will affirm the presidency of Biden. Also, U.S right-wing activists have violated U.S. talent perimeters, forcing a lockout on the building, and delaying a symbolic vote to affirm the presidential victory of Joe Biden over Donald Trump. “News told, rumors heard, reality implied, statistics buried.” ― Toba Beta, My Ancestor Was an Ancient Astronaut. https://www.goodreads.com/quotes/tag/news

In my personal opinion, I assume burning the flag is truly wrong. Why? Well, humans who provide their hearts to combat for our united states of america and can also quit up getting shot, then any person burning it. People have to be punished for it due to the fact they deserve that for what they did. The burning of the flag is offensive due to the fact it is political. Experience proves that no longer outlawing it, nor voicing opposition, is the way to fight political speech that one disagrees with. When exceptions to the First Amendment are made due to the fact any one in strength disagrees with a speech, liberty will now not endure. The January sixth protest I suppose was once very merciless when the democrats paid humans to damage into the white residence and pretend, they have been Trump supporters and tear up rooms simply so it ought to be on the information Trump instructed them to come storm in. What I assume need to be one of a kind between these is that that flag burning it have to be unlawful and with the pretend Trump supporters they need to capture them to see who finished it and file chargers on them human beings for doing some thing dumb like that.

In conclusion, The Texas vs Johnson was once about when Johnson burned an American flag. He was once convicted and charged with violating a Texas regulation that prohibited a revered object, like the American flag, from being desecrated if such an motion used to be possibly to provoke others to outrage. Johnson used to be charged earlier than a Texas choose and sentenced. He appealed, alleging that the First Amendment shielded his acts as "symbolic speech". Then with the January sixth protest used to be when the U.S. President Donald Trump informed supporters to meet at the U.S. Capitol to strive to urge representatives of Congress to droop the formal system that will verify the presidency of Biden. On that day, congress used to be to meet to certify the electoral votes for the president. While Trump used to be speakme Black Lives Matter broke into the capitol and vandalized more than one rooms in the course of the building. The pretend trump supporters desired it to be on the information that Trump supporters stormed the capital. I suppose all of this trump crap used to be dumb of what they did to the white residence and lied about. Now this Biden vs Trump is like getting all over social media and is like making others argue and it’s making me desire to simply delete all social media till it’s all over with.

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Texas v. johnson.

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                          Gregory Lee Johnson was found guilty of violating Texas state law by burning the American flag at the Republican national convention in Dallas, Texas. The state sentenced Johnson to one year in prison and a fine of $2000. Johnson argued that the right to burn the American flag was protected under the right to free speech in the First Amendment. Johnson appealed the conviction to the Court of Appeals for the Fifth District in Dallas. The court upheld the conviction made by the state, and the sentence given to Johnson remained. Johnson then appealed to the Texas Court of Criminal Appeals and they reversed the decision of the district court and dismissed the charges. The state of Texas then appealed to the Untied States Supreme Court, and the Supreme Court upheld the decision of the Texas Court of Criminal Appeals. The Supreme Court decided that Johnson was protected under the first Amendment and the charges were dismissed.              The majority opinion stated that the First Amendment protects not only spoken words but protects acts of speech. These acts of conduct are done to express and idea and are therefore considered free speech. At the time of Johnson's burning of the flag he was clearly expressing elements of communication. At trial, Johnson stated that the reason for his flag burning: "The flag was burned as Ronal Regan was being re-nominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn't have been made at that time." The Supreme Court decided that this action was an expression of an idea and not an act of aggression to provoke violence. Therefore since it was an act of speech, Johnson was protected by the First Amendment and his conviction was in violation of the Constitution.              The dissenting members of the court said that the flag is a sacred part of America. Congress set forth laws on the specific design and construction of the flag.

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Texas v. Johnson – Case Background

EXPANSION OF EXPRESSION

Read the Case Background and  Key Question. Then analyze Documents A-M. Finally, answer the Key Question in a well-organized essay that incorporates your interpretations of Documents A-M, as well as your own knowledge of history.

Case Background

During the 1984 Republican National Convention in Dallas, Texas, Gregory Lee Johnson joined an organized political protest in opposition to Reagan administration policies and some Dallas-based corporations. Demonstrators marched through the streets, chanting their message. As the march progressed, a fellow protestor handed Johnson an American flag that had been taken from a flag pole at one of their protest locations.

Upon reaching the Dallas City Hall, Johnson doused the flag with kerosene and set it ablaze. Johnson and his fellow demonstrators circled the burning flag and shouted “America, the red, white, and blue, we spit on you.” Although no one was hurt or threatened with injury by the act, many who witnessed it were deeply offended. Johnson was arrested, charged, and convicted of violating a Texas law that made it a crime to desecrate a “venerable object.” He received a sentence of one year in prison and was ordered to pay a $2,000 fine.

Johnson appealed his conviction, arguing that the Texas flag desecration statute violated the First Amendment. The state of Texas held that it had an interest in preserving the flag as a symbol of national unity. Indeed, in previous cases, the Supreme Court had referred to the American flag as “national property.” The Court had to consider: Are there certain symbols that are so widely cherished and understood to convey certain meanings that the government can regulate their use?

Texas Vs. Johnson: Supreme Court Case Essay

The Texas v. Johnson (1989) supreme court case is very important. It was a landmark supreme court case, and decided for all future court cases how the first amendment would be interpreted. They had to look at and determine the extent of the phrase, “freedom of speech”. Johnson’s action of burning an American flag was to be reviewed and they would have to decide whether his action counted as “freedom of speech,” and if it was protected by the first amendment. It turned out to be that his action was protected by the first amendment.

Protection of the American flag does not come before the freedom to express political ideas. It was in Dallas, Texas that the Republican National Convention was being held in, it was the year of 1984. There was a crowd there protesting against the republican president, and Johnson was part of the group, protesting with them. (Miller 6) During the expressing of displeasure by this group, a protester pulled down an american flag and handed it to Johnson. Johnson then, to many peoples shock and displeasure, set the flag on fire and burned it. Miller 6) He was desecrating and disrespecting the nation’s symbol which the state had an interest in protecting and believed that its interests were more important than Johnson’s dissatisfaction. (Miller 59-61)

Johnson was then sued by Texas, who had a law against flag desecration. (Miller 6) Johnson argued against their conviction, saying that his action was political and was protected by the first amendment. (Miller 6-8) He was convicted and he appealed to higher courts until he reached the supreme court. The state of Texas argued that Johnson was breaching the peace and could have caused violence. Miller 64) In the Texas v. Johnson (1989) case, the supreme court held, by a close vote of 5-4, that Johnson’s actions were symbolic speech and were protected by the first amendment.

They decided that Texas’s law against flag desecration was too vague and they denied that his actions could have caused violence. They believed his actions were freedom of speech and quoted the Free Speech Clause. Justice Brennan wrote the opinion for the majority vote. They believed that Johnson’s actions were enough communication to be protected by the Free Speech Clause. Miller 77) They rejected Texas’s argument that his actions caused a breach of peace and could have caused violence, and said that the average person would not retaliate from such actions. About protecting the nation’s symbol, the Court said that the government cannot stop the expression of an idea just because it is offensive or disagreeable. (Miller 77-78)

Their concluding statement was “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents. (Miller 78) A dissenting opinion was written by Chief Justice Rehnquist who quoted famous sayings and poems for a patriotic and passionate viewpoint and brought up the American flag’s colorful history. He wrote “flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others. ” The case of Texas v. Johnson (1989) important because it fully defined the meaning of the Freedom Speech Clause.

It gives the people the freedom of expressing their ideas, even unpopular ones, and communicating their ideas. People can now express their opinions and argue for their view point. Before the Texas v. Johnson (1989) case, people got put in jail for expressing offensive ideas. If society didn’t agree, they could get put in jail. The Johnson case allows Americans to express unpopular ideas and be assured that they won’t be punished, even if they do something offensive. (Miller 95) This case was used later in history to protect freedom of speech and communications of olitical ideas that were unpopular and disagreeable.

The Texas v. Johnson (1989) case caused an uproar after its result. The government made attempts to overrule the Johnson case ruling. President George Bush proposed to make an amendment to the constitution to override the ruling. None of the attempts worked though. The Supreme Court held firm in its decision saying that even though it might be disagreeable, it is a right that is needed for true freedom of speech. It hasn’t been overturned to this day. It was a fair ruling.

It might be repulsive, but it is the freedom of expressing your opinion, which the founding fathers wanted Americans to have. In the Texas v. Johnson (1989) ruling the Court said “If there is a bedrock principle underlying the Firs Amendment, it is that the government may not prohibit the expression of an idea simply because the society finds the idea itself offensive or disagreeable. ” (Miller 78) In a later ruling against overruling Johnson’s case the Court said that the Constitution does not change with popular opinion. (Miller 91) America is a republic democracy.

The people are entitled to freedom of speech and ideas just how the Johnson ruling went. The people can’t do as they please though. America is republic, meaning that the laws must still be followed. The supreme law of the land is the Constitution. The Constitution states in its first amendment that “Congress shall make no law… abridging the freedom of speech. ” (Miller 8) It is clearly meant for the people to be able to state their ideas without being put in jail. The Johnson case assured Americans that they could express their ideas, even if they were unpopular and offensive, without fear of being punished.

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