Facts of the Case

In 1984, during the Republican National Convention in Dallas, Texas, Gregory Lee Johnson participated in a political protest against the policies of the Reagan administration. As part of the protest, Johnson doused an American flag with kerosene and set it on fire while protesters chanted. He was arrested and charged under a Texas law that prohibited the desecration of a venerated object, including the American flag, if such action was likely to incite anger in others. Johnson was convicted, but he argued that his actions were protected by the First Amendment as symbolic speech.

Constitutional Question

Does the Texas law prohibiting the desecration of the American flag violate the First Amendment’s guarantee of freedom of speech when applied to someone who burns the flag as part of a political protest?

Arguments

For Johnson:

• Burning the American flag was a form of symbolic speech intended to convey a political message, and therefore it is protected by the First Amendment.
• The government cannot prohibit the expression of ideas simply because they are offensive or disagreeable to the majority.
• The Texas law was an unconstitutional content-based restriction on speech, as it targeted expressive conduct based on the message it conveyed.

For Texas:

• The state has a compelling interest in preserving the flag as a symbol of national unity and in preventing breaches of the peace.
• The law regulates conduct, not speech, and is aimed at protecting the public from actions that are likely to incite violence or disrupt public order.
• Flag burning is not essential to the expression of ideas, and the state can achieve its goal of preserving the flag’s symbolic value by prohibiting its desecration.

The Decision

The Supreme Court, in a 5-4 decision, ruled in favor of Johnson. Justice William J. Brennan, writing for the majority, held that the Texas law violated Johnson’s First Amendment rights. The Court made several key points:

1. Symbolic Speech: The Court recognized that flag burning constitutes expressive conduct, and therefore, it is a form of speech protected by the First Amendment. The Court emphasized that the government cannot prohibit the expression of an idea simply because society finds it offensive or disagreeable.
2. Content-Based Restriction: The Texas law was found to be a content-based restriction on speech because it specifically targeted actions that desecrate the flag, an action inherently linked to a particular message or viewpoint. Such restrictions must be subjected to strict scrutiny.
3. No Threat to Public Order: The Court rejected the state’s argument that the law was necessary to prevent breaches of the peace, noting that there was no evidence that Johnson’s flag burning threatened public order or incited violence.

The Court concluded that the government cannot prohibit expressive conduct that conveys a political message, even if that message is highly offensive to many people.

Significance

Texas v. Johnson is a landmark case that reaffirmed the broad protections afforded to free speech under the First Amendment, particularly in the context of political expression. The decision established that the act of flag burning, as a form of symbolic speech, is protected by the Constitution, even when it is offensive to many. The ruling underscored the principle that the government cannot suppress speech based on its content or viewpoint, reinforcing the importance of free expression in a democratic society. Texas v. Johnson has had a lasting impact on First Amendment jurisprudence and continues to be a significant precedent in cases involving symbolic speech and protest.