Texas v. Johnson

Texas v. Johnson was a landmark Supreme Court case decided in the year 1988 by the Rehnquist Court. The case attempted to resolve the question of whether the desecration of an American flag was a form of speech that was protected under the First Amendment right to free speech.

The case came to the Supreme Court after Gregory Lee Johnson, a Texas resident, burned an American flag in protest against President Reagan’s administration policies at the 1984 Republican National Convention in Dallas, Texas. This violated a law in Texas that prevented the desecration of a venerated object–including American flags–if the action likely to incite anger in others. Because of this Texas law, Johnson was convicted and sentenced to one year in prison as well as a $2,000 fine. The Texas Court of Criminal Appeals reversed Johnson’s conviction, and from there, the case went on to be heard by the Supreme Court.

In a 5-4 ruling, the Court ruled that Johnson’s burning of the American flag was in fact a form of expression (known as “symbolic speech”) that was protected under the First Amendment. The Court deemed Johnson’s actions to be purely expressive conduct, and that just because some people were offended by the message that Johnson was presenting, that did not mean that the state had the authority to prohibit the speech. The Court stated in its opinion, “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.” The Court also noted that if it were to rule that this type of speech was not protected, it would also apply to actions that are meant to show respect for venerated objects, such as when a flag is burned and buried after it has become worn out. The Court therefore ruled that it cannot discriminate when it is appropriate to burn a flag purely based on viewpoint.

Dissenter Justice Stevens, however, felt that the case had been wrongly decided, and that the American flag’s unique status as a symbol of patriotism and national unity outweighed the importance of being able to engage in “symbolic speech.” Therefore, the government could (and should) constitutionally be allowed to prohibit flag burning.

To hear the oral arguments from the case, click here.