This Landmark Supreme Court Cases and the Constitution eLesson focuses on a case involving expressive conduct, and what is for many a deeply cherished symbol of America—the U.S. flag. In a closely divided (5-4) ruling, the Supreme Court held that states could not forbid burning the U.S. flag in protest, because doing so would violate the freedom of speech protected by the First Amendment.
- Texas v. Johnson, The Oyez Project
In 1984, the Republican Party convened in Dallas, Texas for their national convention. President Ronald Reagan, seeking a second term in office, was to be officially nominated as the GOP candidate for President. Scores of individuals organized a political protest in Dallas that voiced opposition to Reagan administration policies and those of some Dallas-based corporations. Among the protesters was Gregory Lee Johnson. As the demonstrators marched through the streets, chanting their message, a fellow protestor handed Johnson an American flag that had been taken from a flag pole at one of their protest locations.
Upon reaching the Dallas City Hall, Johnson doused the flag with kerosene and set it ablaze. Johnson and his fellow demonstrators circled the burning flag and shouted “America, the red, white, and blue, we spit on you.” No one was hurt or threatened with injury by the act, but many who witnessed it were deeply offended. Johnson was arrested, charged, and convicted of violating a Texas law that made it a crime to desecrate a “venerable object.” Texas was not the only state to have anti-flag burning laws on the books, 47 other states also criminalized flag desecration. For his crime, Johnson received a sentence of one year in prison and was ordered to pay a $2,000 fine.
Johnson appealed his conviction and his case eventually went to the Supreme Court. Johnson argued that the Texas flag desecration statute violated the First Amendment, which says “Congress shall make no law…abridging the freedom of speech…or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The state of Texas argued that it had an interest in preserving the flag as a symbol of national unity. The Court had to consider: Are there certain symbols that are so widely cherished and understood to convey certain meanings that the government can regulate their use?
The Court agreed with Johnson (5-4) and struck down the Texas statute. Burning a U.S. flag in protest was expressive conduct protected by the First Amendment. “The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long recognized that its protection does not end at the spoken or written word[.] 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[.]”
Though Texas v. Johnson has been upheld in subsequent Supreme Court cases, flag desecration itself remains unpopular in America. The House of Representatives has, on six different occasions, voted on a Constitutional Amendment known as the Flag Desecration Amendment, which states: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” Each time this Amendment has been introduced, it has passed the House by the required two-thirds majority. The Amendment never passed the Senate with the 67 votes needed, but it also has never received less than 63 votes in support.
- Why was Gregory Johnson arrested?
- What were the arguments on each side?
- Do you agree with the Court’s ruling that the First Amendment protects expressive conduct? Why or why not?
- In his dissenting opinion, Chief Justice Rehnquist argued that Johnson’s right to express his views had not been abridged. “It was Johnson’s use of this particular symbol, and not the idea that he sought to convey by it or by his many other expressions, for which he was punished.…Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people—whether it be murder, embezzlement, pollution, or flag burning.” How would you respond to this argument?
- Consider this: Before Johnson, 48 states had anti-flag desecration laws. Each time Congress has voted on the Flag Desecration Amendment, the proposal has passed by wide margins in the House and just short of the required two-thirds majority in the Senate. Do you think it is plausible that such an Amendment could become part of the Constitution? How would this impact the Supreme Court? Would such an Amendment alter the integrity of the First Amendment?