Texas v. Johnson

Background:

In the summer of  1984, the Republican National Convention was held in Dallas, Texas. In this conference, President Ronald Reagan was being nominated for reelection. Many groups organized demonstrations outside of the convention, criticizing Reagan’s policies, large corporations, nuclear weapons, and U.S. foreign policy. One of these protesters was Gregory Lee Johnson, a member of a political activist organization. During a march outside Dallas City Hall, Johnson poured kerosene on an American flag and burned it. No one was physically injured by this action, and the protest did not cause a riot. However, many people were deeply offended by the act.

The Case:

Johnson was arrested under a Texas law, prohibiting desecration of a venerated object, such as the American flag, if the action was likely to offend others. He was convicted, fined $2000, and sentenced to one year in prison. The case eventually reached the Supreme Court, and centered on the question: Does the First Amendment protect flag burning as a form of political expression? The First Amendment protects freedom of speech, but Johnson’s action was not spoken or written words, which sparked debate.

Debates From Each Side:

The state of Texas, represented by Kathi Alyce Drew, an Assistant District Attorney for Dallas County, argued flag burning was different from ordinary political speech, and therefore was not protected by the First Amendment. Texas reasoned the American flag represented the nation, its history, and the sacrifices of military service members. Because of this unique symbolic value, the government had a legitimate interest in protecting it from desecration. They also argued burning the flag could provoke violence and public disorder due to many Americans' emotional attachment to it. 

Johnson, on the other hand, argued his actions were political expression, and were protected by the U.S. Constitution. His lawyers contended that the First Amendment protects political expression, under the idea of symbolic actions being a form of speech. The government cannot prohibit political expression simply because some people may find it offensive. Johnson’s defense maintained that punishing him for his act of burning the flag amounted to punishing him for his viewpoint and political opinions, which he expressed.

Verdict:

On March 21, 1989, the Supreme Court ruled in a 5-4 vote in favor of Johnson. The majority opinion was written by William J. Brennan Jr., who concluded that Johnson’s flag burning was a form of symbolic speech, protected by the First Amendment. The majority agreed that freedom of speech is intended to protect actions even if society may find such offensive. It was noted, society’s outrage alone is not justification for suppressing free speech. It was also found that the Texas law under which Johnson was convicted discriminated based on perspective. This law punished actions such as flag burning, that may arouse anger in others, yet exempted from prosecution the same actions when performed in a respectful manner of venerated objects. For example, this law did not punish the burning and burying of a worn-out flag. It was held that the government could not discriminate against actions of this manner based solely on viewpoint.

Legacy:

This case remains one of the most important cases over the First Amendment, establishing that constitutional protection does not depend on whether speech is respectful, popular, or widely accepted. It solidified the idea that free speech, as a constitutional right, does not depend on public approval. Texas v. Johnson demonstrated the protection of free expression, by ruling that even political acts which can be highly offensive, such as flag burning, are protected under the First Amendment, as they constitute a form of speech. It simultaneously expanded the Court’s recognition of symbolic speech, solidifying that actions can communicate ideas equally as effectively as spoken or written words, and deserve to be equally protected. 

After this decision, Congress passed the Flag Protection Act of 1989, in an attempt to prohibit flag desecration throughout the nation. The Supreme Court struck down that law the following year in the case United States v. Eichman, reaffirming Texas v. Johnson. This case maintains its relevance through more recent times, as debates on protests, political demonstrations, and controversial expression often reference the principles established in this case. The most prominent of these principals, is that free speech can not be restricted simply because it may be controversial or offensive.