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T, Texas v. Johnson,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 29 November 2023

Texas v. Johnson,

491 U.S. 397 (1989), argued 21 Mar. 1989, decided 21 June 1989 by vote of 5 to 4; Brennan for the Court, Rehnquist, White, O’Connor, and Stevens in dissent. In Texas v. Johnson a majority of the Supreme Court considered for the first time whether the *First Amendment protects desecration of the United States flag as a form of symbolic speech. A sharply divided Court had previously dealt with symbolic speech cases that involved alleged misuses of the flag. While the Court had ruled in favor of the defendants in those cases (Street v. New York, 1969; Smith v. Goguen, 1974; Spence v. Washington, 1974), it had done so on narrow grounds, refusing to confront the ultimate question of the constitutional status of flag desecration.

Johnson had burned a flag in front of a building while protesting policies of the administration of President Ronald *Reagan during the 1984 Republican national convention in Dallas. Johnson’s act seriously offended several onlookers. He was arrested for violating a Texas statute that made it a crime to intentionally or knowingly desecrate a state or national flag. He was convicted and sentenced to a year in prison and a fine of two thousand dollars. The Texas Court of Criminal Appeals reversed, holding that Johnson’s actions were symbolic speech protected by the First Amendment.

Texas asserted two justifications for Johnson’s conviction: preventing breaches of the peace triggered by the offense that desecration inflicts and preserving the integrity of the flag as a symbol of national unity. In order to assess the validity of these claims, Justice William J. *Brennan had to weigh them against the First Amendment values at stake. Because government has more license to prohibit harmful “conduct” than harmful “speech,” the Court first had to decide whether Johnson’s desecration was “conduct” or “speech.” Brennan ruled that the desecration was “expressive conduct” because it was an attempt to “convey a particularized message” (p. 404).

But First Amendment doctrine also grants the government more power to regulate “expressive conduct” than “pure expression” because, as the Court said in the draft-card burning case United States v. *O’Brien (1968), where “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations of First Amendment freedoms (p. 376). Texas claimed that Johnson’s flag burning was a harmful nonspeech element and that he could have made his criticisms of America without resorting to desecration. The state, however, may not use such “incidental” regulation as a pretext for restricting speech because of its controversial content or because it simply causes offense. If the law is ultimately directed at the content of speech itself, it must pass the most stringent First Amendment standards (Boos v. Barry, 1988, p. 321). Only speech that incites others to imminent lawless or violent conduct may be subject to abridgment on these grounds (*Brandenburg v. Ohio, 1969).

Applying these standards, Brennan concluded that Texas’s conviction of Johnson was impermissible. There was no evidence that Johnson’s expression threatened an imminent disturbance of the peace, and the statute’s protection of the integrity of the flag as a symbol was improperly directed at the communicative message entailed in flag burning. “If there is a bedrock principle underlying the First Amendment,” Brennan wrote, “it is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” (p. 414).

The majority’s opinion reaffirmed central First Amendment doctrine. Nonetheless, four members of the Court dissented because of the special nature of the flag as a symbol. Chief Justice William *Rehnquist issued a poetic dissent that (p. 1015) celebrated the history of the flag in America. The reaction to Johnson spilled into the national political arena. Within a few months Congress passed the Flag Protection Act of 1989, which attempted to challenge legislatively the Supreme Court’s ruling in Johnson. Following Johnson, the Supreme Court declared this act unconstitutional in United States v. *Eichman (1990).

See also speech and the press; symbolic speech.

Donald A. Downs