Texas v. Johnson - wikipedia Texas v. Johnson This article includes a list of references, but its sources remain unclear because it has insufficient inline citations. Please help to improve this article by introducing more precise citations. ( May 2016 ) United States Supreme Court case Texas v. Johnson Supreme Court of the United States Argued March 21, 1989 Decided June 21, 1989 Full case name Texas v. Gregory Lee Johnson Citations 491 U.S. 397 ( more ) 109 S. Ct. 2533 ; 105 L. Ed. 2d 342 ; 1989 U.S. LEXIS 3115 ; 57 U.S.L.W. 4770 Prior history Defendant convicted, Dallas County Criminal Court ; affirmed, 706 S.W. 2d 120 ( Tex. App. 1986 ) ; reversed and remanded for dismissal, 755 S.W. 2d 92 ( Tex. Crim. App. 1988 ) ; cert. granted, 488 U.S. 884 ( 1988 ) Holding A statute that criminalizes the desecration of the American flag violates the First Amendment. Texas Court of Criminal Appeals affirmed. Court membership Chief Justice William Rehnquist Associate Justices William J. Brennan Jr. Byron White Thurgood Marshall Harry Blackmun John P. Stevens Sandra Day O'Connor Antonin Scalia Anthony Kennedy Case opinions Majority Brennan, joined by Marshall, Blackmun, Scalia, Kennedy Concurrence Kennedy Dissent Rehnquist, joined by White, O'Connor Dissent Stevens Laws applied U.S. Const. amend. I ; Desecration of a Venerated Object, Tex. Penal Code § 42.09 ( a ) ( 3 ) Texas v. Johnson, 491 U.S. 397 ( 1989 ), was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five - justice majority in holding that the defendant Gregory Lee Johnson 's act of flag burning was protected speech under the First Amendment to the United States Constitution. Johnson was represented by attorneys David D. Cole and William Kunstler. Contents 1 Background of the case 2 The Supreme Court 's decision 2.1 Kennedy 's concurrence 2.2 Rehnquist 's dissent 2.3 Stevens ' dissent 3 Subsequent developments 4 See also 5 References 6 Further reading 7 External links Background of the case Johnson ( to right ) with attorney Kunstler, c. 1989 Gregory Lee `` Joey '' Johnson, then a member of the Revolutionary Communist Youth Brigade, participated in a political demonstration during the 1984 Republican National Convention in Dallas, of the Reagan Administration and of certain companies based in Dallas. They marched through the streets, shouted chants, destroyed property, broke windows and threw trash, beer cans, soiled diapers and various other items, and held signs outside the offices of several companies. At one point, another demonstrator handed Johnson an American flag stolen from a flagpole outside one of the targeted buildings. When the demonstrators reached Dallas City Hall, Johnson poured kerosene on the flag and set it on fire. During the burning of the flag, demonstrators shouted such phrases as, `` America, the red, white, and blue, we spit on you, you stand for plunder, you will go under, '' and, `` Reagan, Mondale, which will it be ? Either one means World War III. '' No one was hurt, but some witnesses to the flag burning said they were extremely offended. One witness, Daniel E. Walker, received international attention when he collected the burned remains of the flag and buried them according to military protocol in his backyard. Johnson was charged with violating the Texas law that prohibits vandalizing respected objects ( desecration of a venerated object ). He was convicted, sentenced to one year in prison, and fined $2,000. He appealed his conviction to the Fifth Court of Appeals of Texas, but he lost this appeal. On appeal to the Texas Court of Criminal Appeals the court overturned his conviction, saying that the State could not punish Johnson for burning the flag because the First Amendment protects such activity as symbolic speech. The court said, `` Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government can not mandate by fiat a feeling of unity in its citizens. Therefore that very same government can not carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol. '' The court also concluded that the flag burning in this case did not cause or threaten to cause a breach of the peace. Texas asked the Supreme Court of the United States to hear the case. In 1989, the Court handed down its decision. The Supreme Court 's decision Justice Brennan wrote the majority opinion The opinion of the Court came down as a controversial 5 -- 4 decision, with the majority opinion delivered by William J. Brennan, Jr. and Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy joining Brennan, with Kennedy also writing a concurrence. The Court first considered the question of whether the First Amendment to the United States Constitution protected non-speech acts, since Johnson was convicted of flag desecration rather than verbal communication, and, if so, whether Johnson 's burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction. The First Amendment specifically disallows the abridgment of `` speech, '' but the court reiterated its long recognition that its protection does not end at the spoken or written word. This was concluded based on the 1931 case Stromberg v. California ( 283 U.S. 359 ) which ruled the display of a red flag as speech, and the 1969 case Tinker v. Des Moines Independent Community School District ( 393 U.S. 503 ), which ruled the wearing of a black armband as speech. The Court 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, '' but acknowledged that conduct may be `` sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments. '' In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court asked 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. '' The Court found that, `` Under the circumstances, Johnson 's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment... 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. '' The court concluded that, while `` the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word, '' it may not `` proscribe particular conduct because it has expressive elements. '' Texas had conceded, however, that Johnson 's conduct was expressive in nature. Thus, the key question considered by the Court was `` whether Texas has asserted an interest in support of Johnson 's conviction that is unrelated to the suppression of expression. '' At oral argument, the state defended its statute on two grounds : first, that states had a compelling interest in preserving a venerated national symbol ; and second, that the state had a compelling interest in preventing breaches of the peace. As to the `` breach of the peace '' justification, however, the Court found that `` no disturbance of the peace actually occurred or threatened to occur because of Johnson 's burning of the flag, '' and Texas conceded as much. The Court rejected Texas 's claim that flag burning is punishable on the basis that it `` tends to incite '' breaches of the peace, citing the test from the 1969 case Brandenburg v. Ohio ( 395 U.S. 444 ) that the state may only punish speech that would incite `` imminent lawless action, '' finding that flag burning does not always pose an imminent threat of lawless action. The Court noted that Texas already punished `` breaches of the peace '' directly. Kennedy 's concurrence Justice Kennedy wrote a concurrence with Brennan 's opinion. Kennedy wrote : For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. 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. 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. Rehnquist 's dissent Brennan 's opinion for the court generated two dissents. Chief Justice William H. Rehnquist, joined by Justices Byron White and Sandra Day O'Connor, argued that the `` unique status '' of the flag `` justifies a governmental prohibition against flag burning in the way respondent Johnson did here. '' Rehnquist wrote : The American flag, then, 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 can not 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. However, the Johnson majority found the lack of evidence for flag protection in the Constitution that necessitated the claim of `` uniqueness '' to counter indicate protection of the flag from free speech. They answered the `` uniqueness '' claim directly : `` We have not recognized an exception to ( bedrock First Amendment principles ) even where our flag has been involved... There is, moreover, no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American flag alone... We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment. '' Rehnquist also argued that flag burning is `` no essential part of any exposition of ideas '' but rather `` 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. '' He goes on to say that he felt the statute in question was a reasonable restriction only on the manner in which Johnson 's idea was expressed, leaving Johnson with, `` a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy. '' He quoted the 1984 Supreme Court decision in City Council of Los Angeles v. Taxpayers for Vincent ( 466 U.S. 789 ), where the majority stated that `` the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places. '' Stevens ' dissent Justice John Paul Stevens also wrote a dissenting opinion. Stevens argued that the flag `` is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations... The value of the flag as a symbol can not be measured. '' Stevens concluded, therefore, that `` The case has nothing to do with ' disagreeable ideas. ' It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset, '' and that Johnson was punished only for the means by which he expressed his opinion, not the opinion itself. Subsequent developments The Court 's decision invalidated laws in force in 48 of the 50 states. More than two decades later, the issue remained controversial, with polls suggesting that a majority of Americans still supported a ban on flag - burning. Congress did, however, pass a statute, the 1989 Flag Protection Act, making it a federal crime to desecrate the flag. In the 1990 Supreme Court case United States v. Eichman ( 496 U.S. 310 ), that law was struck down by the same five person majority of justices as in Texas v. Johnson ( in an opinion also written by Justice William Brennan ). Since then, Congress has considered the Flag Desecration Amendment several times. The amendment usually passes the House of Representatives, but has always been defeated in the Senate. The most recent attempt occurred when S.J. Res. 12 failed by one vote on June 27, 2006. See also Gregory Lee Johnson Flag desecration Street v. New York Flag Protection Act United States v. Eichman Flag Desecration Amendment Stromberg v. California List of United States Supreme Court cases Lists of United States Supreme Court cases by volume List of United States Supreme Court cases, volume 491 References Jump up ^ Texas v. Johnson, 491 U.S. 397 ( 1989 ). This article incorporates public domain material from this U.S government document. Jump up ^ `` Jan Jarvis, `` Humble man gained national attention for burying flag that had been set on fire at protest '' ``. Fort Worth Star - Telegram, September 16, 2009. Retrieved September 22, 2009. Jump up ^ `` Background Summary and Questions, Texas v. Johnson ( 1989 ), Landmark Supreme Court Cases ''. Archived from the original on 3 June 2012. Retrieved 2008 - 02 - 05. Jump up ^ Eisler, 277 Jump up ^ 491 U.S. at 420 - 21. Jump up ^ `` Senate opens flag - burning debate ''. CNN. Jun 26, 2006. Retrieved May 25, 2010. Jump up ^ 496 U.S. 310 ( 1990 ) Jump up ^ S.J. Res. 12 Further reading Goldstein, Robert Justin ( 2000 ). Flag Burning and Free Speech : The Case of Texas v. Johnson. Lawrence, KS : University Press of Kansas. ISBN 0 - 7006 - 1053 - 7. Vergobbi, David J. ( 2003 ). `` Texas v. Johnson ''. In Parker, Richard A. ( ed. ). Free Speech on Trial : Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL : University of Alabama Press. pp. 281 -- 297. ISBN 0 - 8173 - 1301 - X. CS1 maint : Extra text : editors list ( link ) External links Wikisource has original text related to this article : Texas v. Johnson Text of Texas v. Johnson, 491 U.S. 397 ( 1989 ) is available from : CourtListener Findlaw Justia OpenJurist Google Scholar Audio recording of oral arguments Texas v. Johnson, First Amendment Library entry at the Library of Congress Web Archives ( archived 2004 - 12 - 21 ) Thoughts on Flag Burning and other statements by Edward Hasbrouck and Joey Johnson hide United States First Amendment case law Establishment Clause Public funding Everson v. Board of Education ( 1947 ) McCollum v. Board of Education ( 1948 ) Walz v. Tax Commission of the City of New York ( 1970 ) Lemon v. Kurtzman ( 1971 ) Marsh v. Chambers ( 1983 ) Mueller v. Allen ( 1983 ) Aguilar v. Felton ( 1985 ) Board of Education of Kiryas Joel Village School District v. Grumet ( 1994 ) Agostini v. Felton ( 1997 ) Mitchell v. Helms ( 2000 ) Zelman v. Simmons - Harris ( 2002 ) Locke v. Davey ( 2004 ) Arizona Christian School Tuition Organization v. Winn ( 2011 ) Public displays Stone v. Graham ( 1980 ) Lynch v. Donnelly ( 1984 ) Board of Trustees of Scarsdale v. McCreary ( 1985 ) County of Allegheny v. ACLU ( 1989 ) McCreary County v. ACLU of Kentucky ( 2005 ) Van Orden v. Perry ( 2005 ) Pleasant Grove City v. Summum ( 2009 ) School prayer Zorach v. Clauson ( 1952 ) Engel v. Vitale ( 1962 ) Abington School District v. Schempp ( 1963 ) Stone v. Graham ( 1980 ) Wallace v. Jaffree ( 1985 ) Lee v. Weisman ( 1992 ) Santa Fe Independent School District v. Doe ( 2000 ) Elk Grove Unified School District v. Newdow ( 2004 ) Creationism Epperson v. Arkansas ( 1968 ) Edwards v. Aguillard ( 1987 ) Kitzmiller v. Dover Area School District ( M.D. Pa. 2005 ) Legislature prayer Marsh v. Chambers ( 1983 ) Town of Greece v. Galloway ( 2014 ) Other McGowan v. Maryland ( 1961 ) McDaniel v. Paty ( 1978 ) Estate of Thornton v. Caldor, Inc. ( 1985 ) Texas Monthly, Inc. v. Bullock ( 1989 ) Hosanna - Tabor Evangelical Lutheran Church & School v. 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Colorado Civil Rights Commission ( 2018 ) National Institute of Family and Life Advocates v. Becerra ( 2018 ) hide Freedom of speech ( portal ) Sedition and imminent danger Alien and Sedition Acts ( 1798 ) Masses Publishing Co. v. Patten ( S.D.N.Y. 1917 ) Schenck v. United States ( 1919 ) Abrams v. United States ( 1919 ) Gitlow v. New York ( 1925 ) Whitney v. California ( 1927 ) Dennis v. United States ( 1951 ) Communist Party v. Subversive Activities Control Board ( 1955, 1961 ) Yates v. United States ( 1957 ) Bond v. Floyd ( 1966 ) Brandenburg v. Ohio ( 1969 ) Hess v. Indiana ( 1973 ) False speech United States v. Alvarez ( 2012 ) Fighting words and the heckler 's veto Cantwell v. Connecticut ( 1940 ) Chaplinsky v. New Hampshire ( 1942 ) Terminiello v. Chicago ( 1949 ) Feiner v. New York ( 1951 ) Gregory v. Chicago ( 1969 ) National Socialist Party of America v. Village of Skokie ( 1977 ) R.A.V. v. City of St. Paul ( 1992 ) Snyder v. Phelps ( 2011 ) Elonis v. United States ( 2015 ) Freedom of assembly and public forums Hague v. CIO ( 1939 ) Schneider v. New Jersey ( 1939 ) Thornhill v. Alabama ( 1940 ) Martin v. City of Struthers ( 1943 ) Marsh v. Alabama ( 1946 ) Niemotko v. Maryland ( 1951 ) Edwards v. South Carolina ( 1963 ) Cox v. Louisiana ( 1965 ) Brown v. Louisiana ( 1966 ) Adderley v. Florida ( 1966 ) Carroll v. Town of Princess Anne ( 1968 ) Coates v. Cincinnati ( 1971 ) Organization for a Better Austin v. Keefe ( 1971 ) Lloyd Corp. v. Tanner ( 1972 ) Pruneyard Shopping Center v. Robins ( 1980 ) Hill v. Colorado ( 2000 ) McCullen v. Coakley ( 2014 ) Packingham v. North Carolina ( 2017 ) Symbolic speech Stromberg v. California ( 1931 ) United States v. O'Brien ( 1968 ) Cohen v. California ( 1971 ) Smith v. Goguen ( 1974 ) Texas v. Johnson ( 1989 ) United States v. Eichman ( 1990 ) Virginia v. Black ( 2003 ) Compelled speech Minersville School District v. Gobitis ( 1940 ) West Virginia State Board of Education v. Barnette ( 1943 ) Wooley v. Maynard ( 1977 ) Agency for International Development v. Alliance for Open Society International, Inc. ( 2013 ) National Institute of Family and Life Advocates v. Becerra ( 2018 ) Compelled subsidy of others ' speech Abood v. Detroit Board of Education ( 1977 ) Communications Workers of America v. Beck ( 1978 ) Keller v. State Bar of California ( 1990 ) Board of Regents of the University of Wisconsin System v. Southworth ( 2000 ) Johanns v. Livestock Marketing Association ( 2005 ) Davenport v. Washington Education Association ( 2007 ) Knox v. Service Employees International Union, Local 1000 ( 2012 ) Harris v. Quinn ( 2014 ) Friedrichs v. California Teachers Ass'n ( 2016 ) Janus v. AFSCME ( 2018 ) Loyalty oaths American Communications Association v. Douds ( 1950 ) Garner v. Board of Public Works ( 1951 ) Speiser v. Randall ( 1958 ) Keyishian v. Board of Regents ( 1967 ) Communist Party of Indiana v. Whitcomb ( 1974 ) School speech Minersville School District v. Gobitis ( 1940 ) West Virginia State Board of Education v. Barnette ( 1943 ) Tinker v. Des Moines Independent Community School District ( 1969 ) Island Trees School District v. Pico ( 1982 ) Bethel School District v. Fraser ( 1986 ) Hazelwood School District v. Kuhlmeier ( 1988 ) Rosenberger v. University of Virginia ( 1995 ) Morse v. Frederick ( 2007 ) Obscenity Rosen v. United States ( 1896 ) United States v. One Book Called Ulysses ( S.D.N.Y. 1933 ) Roth v. United States ( 1957 ) One, Inc. v. Olesen ( 1958 ) Smith v. California ( 1959 ) Marcus v. Search Warrant ( 1961 ) MANual Enterprises v. Day ( 1962 ) Jacobellis v. Ohio ( 1964 ) Quantity of Books v. Kansas ( 1964 ) Freedman v. Maryland ( 1965 ) Ginzburg v. United States ( 1966 ) Memoirs v. Massachusetts ( 1966 ) Redrup v. New York ( 1967 ) Ginsberg v. New York ( 1968 ) Stanley v. Georgia ( 1969 ) Cohen v. California ( 1971 ) United States v. Thirty - seven Photographs ( 1971 ) Kois v. Wisconsin ( 1972 ) Miller v. California ( 1973 ) Paris Adult Theatre I v. Slaton ( 1973 ) United States v. 12 200 - ft. Reels of Film ( 1973 ) Jenkins v. Georgia ( 1974 ) Erznoznik v. City of Jacksonville ( 1975 ) Young v. American Mini Theatres ( 1976 ) New York v. Ferber ( 1982 ) American Booksellers v. Hudnut ( 7th Cir., 1985 ) Renton v. Playtime Theatres, Inc. ( 1986 ) People v. Freeman ( Cal. 1988 ) Osborne v. Ohio ( 1990 ) United States v. X-Citement Video ( 1994 ) Reno v. American Civil Liberties Union ( 1997 ) United States v. Playboy Entertainment Group ( 2000 ) Ashcroft v. Free Speech Coalition ( 2002 ) Ashcroft v. American Civil Liberties Union ( 2002 ) Nitke v. Gonzales ( S.D.N.Y., 2005 ) United States v. Williams ( 2008 ) Federal Communications Commission v. Fox Television Stations ( 2012 ) American Booksellers Foundation for Free Expression v. Strickland ( 6th Cir., 2009 ) United States v. 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Question: in the johnson flag-burning case the supreme court ruled that
Answer: act of flag burning was protected speech under the First Amendment