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.

Facts

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.