Texas v. Johnson
Encyclopedia
Texas v. Johnson, , was an important 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'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
.
Gregory Lee Johnson, then a member of the Revolutionary Communist Youth Brigade
, participated in a political demonstration during the 1984 Republican National Convention
in Dallas, Texas
. The demonstrators were protesting the policies of the Reagan Administration and of certain companies based in Dallas. They marched through the streets, shouted chants, 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. The Texas Court of Criminal Appeals
would then see his case. This was the highest court in Texas that would see Criminal Appeals. That 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 State had said that its interests were more important than Johnson's symbolic speech rights because it wanted to preserve the flag as a symbol of national unity, and because it wanted to maintain order. The court said neither of these state interests could be used to justify Johnson's conviction.
The court said, "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot 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.
The State of Texas asked the Supreme Court of the United States to hear the case. In 1989, the Court handed down its decision.
The opinion of the court came down as a controversial 5-4 decision, with the majority opinion written by William J. Brennan, Jr.
Justices Marshall, Blackmun, Scalia, and Kennedy joined Brennan, with Kennedy also writing a concurrence.
In determining the case, the court first considered the question of whether the First Amendment reached 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 an uncontroversial conclusion in light of cases such as Stromberg v. California
(display of a red flag as speech) and Tinker v. Des Moines Independent Community School District
(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 Amendment
s." 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 by citing the familiar test of Brandenburg v. Ohio
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.
The most contentious issue before the Court, then, was whether states possessed an interest in preserving the flag as a unique symbol of national identity and principles. Texas argued that desecration of the flag impugned its value as such a unique national symbol, and that the state possessed the power to prevent this result.
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 quotes a 1984 Supreme Court decision in City Council of Los Angeles v. Taxpayers for Vincent, 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."
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 cannot 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.
, making it a federal crime to desecrate the flag. In the case of United States v. Eichman
, 496 U.S. 310 (1990), that law was struck down by the same five person majority of justices as in Johnson (in an opinion also written by Justice 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.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
that invalidated prohibitions on desecrating
Flag desecration
Flag desecration is a term applied to various acts that intentionally destroy, damage or mutilate a flag in public, most often a national flag. Often, such action is intended to make a political point against a country or its policies...
the American flag enforced in 48 of the 50 states. Justice William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
wrote for a five-justice majority in holding that the defendant's act of flag burning was protected speech under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. Johnson was represented by attorneys David D. Cole
David D. Cole
David D. Cole is an American law professor at the Georgetown University Law Center. He has published in various legal fields including civil rights, criminal justice, constitutional law and law and literature...
and William Kunstler
William Kunstler
William Moses Kunstler was an American self-described "radical lawyer" and civil rights activist, known for his controversial clients...
.
Background of the case
Revolutionary Communist Youth Brigade
The Revolutionary Communist Youth Brigade is the former youth group of the Revolutionary Communist Party, USA. Founded originally as the Attica Brigade, it became the Revolutionary Student Brigade. The RCYB uniform included a t-shirts with a large red star superimposed with the silhouette of a...
, participated in a political demonstration during the 1984 Republican National Convention
1984 Republican National Convention
The 1984 National Convention of the Republican Party of the United States convened on August 20 to August 23, 1984, at Reunion Arena in downtown Dallas, Texas. The convention nominated the incumbent Ronald Reagan of California for President of the United States and incumbent George H. W...
in Dallas, Texas
Dallas, Texas
Dallas is the third-largest city in Texas and the ninth-largest in the United States. The Dallas-Fort Worth Metroplex is the largest metropolitan area in the South and fourth-largest metropolitan area in the United States...
. The demonstrators were protesting the policies of the Reagan Administration and of certain companies based in Dallas. They marched through the streets, shouted chants, 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
Daniel E. Walker
Daniel E. Walker, known as Dan Walker , was a United States Army veteran from Fort Worth, Texas, who received international attention for properly disposing of a burned American flag.-Military career:...
, 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
Fifth Court of Appeals of Texas
The Fifth Court of Appeals of Texas is one of the 14 Texas Courts of Appeals. It currently sits in Dallas, Texas. It is simultaneously both the smallest Court of Appeals in terms of jurisdictional geographic size and the largest in terms of composition .-Jurisdiction:The Fifth Court presides...
, but he lost this appeal. The Texas Court of Criminal Appeals
Texas Court of Criminal Appeals
The Texas Court of Criminal Appeals is the court of last resort for all criminal matters in the State of Texas, United States. The Court, which is based in the Supreme Court Building in Downtown Austin, is composed of a Presiding Judge and eight judges....
would then see his case. This was the highest court in Texas that would see Criminal Appeals. That 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 State had said that its interests were more important than Johnson's symbolic speech rights because it wanted to preserve the flag as a symbol of national unity, and because it wanted to maintain order. The court said neither of these state interests could be used to justify Johnson's conviction.
The court said, "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot 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.
The State of 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
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
Justices Marshall, Blackmun, Scalia, and Kennedy joined Brennan, with Kennedy also writing a concurrence.
In determining the case, the court first considered the question of whether the First Amendment reached 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 an uncontroversial conclusion in light of cases such as Stromberg v. California
Stromberg v. California
Stromberg v. California, 283 U.S. 359 was a United States Supreme Court case in which the Court ruled 7-2 that a 1919 California statute banning red flags was unconstitutional because it violated the Fourteenth Amendment...
(display of a red flag as speech) and Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District, was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools...
(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
Communication
Communication is the activity of conveying meaningful information. Communication requires a sender, a message, and an intended recipient, although the receiver need not be present or aware of the sender's intent to communicate at the time of communication; thus communication can occur across vast...
to fall within the scope of the First and Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
s." 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 by citing the familiar test of Brandenburg v. Ohio
Brandenburg v. Ohio
Brandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...
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.
The most contentious issue before the Court, then, was whether states possessed an interest in preserving the flag as a unique symbol of national identity and principles. Texas argued that desecration of the flag impugned its value as such a unique national symbol, and that the state possessed the power to prevent this result.
Kennedy's Concurrence
Justice Kennedy wrote an almost apologetic concurrence for Brennan's opinion, while still joining him, despite pressure from Chief Justice Rehnquist. Kennedy wrote:Rehnquist's dissent
Brennan's opinion for the court generated two dissents. William H. Rehnquist, joined by two other justices, argued that the "uniqueness" of the flag "justifies a governmental prohibition against flag burning in the way respondent Johnson did here." Rehnquist wrote,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 quotes a 1984 Supreme Court decision in City Council of Los Angeles v. Taxpayers for Vincent, 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."
John Paul Stevens' dissent
Justice John Paul StevensJohn Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
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 cannot 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 remains controversial; recent polls suggest that a majority of Americans still support a ban on flag-burning. Congress did, however, pass a statute, the 1989 Flag Protection ActFlag Protection Act
Reacting to protests during the Vietnam War era, the United States 90th Congress enacted Public Law 90-381 , later codified as 18 U.S.C. 700, et. seq., and better known as the Flag Protection Act of 1968. It was an expansion to nationwide applicability of a 1947 law previously restricted only to...
, making it a federal crime to desecrate the flag. In the case of United States v. Eichman
United States v. Eichman
United States v. Eichman, 496 U.S. 310 was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v...
, 496 U.S. 310 (1990), that law was struck down by the same five person majority of justices as in Johnson (in an opinion also written by Justice Brennan). Since then, Congress has considered the Flag Desecration Amendment
Flag Desecration Amendment
The Flag Desecration Amendment, often referred to as the flag burning amendment, is a controversial proposed constitutional amendment to the United States Constitution that would allow the United States Congress to statutorily prohibit expression of political views through the physical desecration...
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
- Flag desecrationFlag desecrationFlag desecration is a term applied to various acts that intentionally destroy, damage or mutilate a flag in public, most often a national flag. Often, such action is intended to make a political point against a country or its policies...
- Street v. New YorkStreet v. New YorkIn Street v. New York, 394 U.S. 576 , the United States Supreme Court held that a New York state law making it a crime "publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]" was, in part, unconstitutional because...
- Flag Protection ActFlag Protection ActReacting to protests during the Vietnam War era, the United States 90th Congress enacted Public Law 90-381 , later codified as 18 U.S.C. 700, et. seq., and better known as the Flag Protection Act of 1968. It was an expansion to nationwide applicability of a 1947 law previously restricted only to...
- United States v. EichmanUnited States v. EichmanUnited States v. Eichman, 496 U.S. 310 was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v...
- Flag Desecration AmendmentFlag Desecration AmendmentThe Flag Desecration Amendment, often referred to as the flag burning amendment, is a controversial proposed constitutional amendment to the United States Constitution that would allow the United States Congress to statutorily prohibit expression of political views through the physical desecration...
- Street v. New York
- Stromberg v. CaliforniaStromberg v. CaliforniaStromberg v. California, 283 U.S. 359 was a United States Supreme Court case in which the Court ruled 7-2 that a 1919 California statute banning red flags was unconstitutional because it violated the Fourteenth Amendment...
- 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
- List of United States Supreme Court cases by the Rehnquist Court