Texas v. Johnson

Background

In Dallas during the 1984 Republican National Convention, a political demonstration called the “Republican War Chest Tour” marched through the city. Gregory Lee Johnson accepted a flag taken from a building, doused it with kerosene, and set it on fire as a political protest. No one was physically injured, several witnesses said they were seriously offended, and Johnson alone was charged and convicted under Texas Penal Code §42.09 for desecrating a state or national flag; he was sentenced to one year in jail and a $2,000 fine.

Reasoning

The Court treated Johnson’s act as expressive conduct protected by the First Amendment, relying on earlier decisions recognizing political uses of the flag as speech. Texas offered two justifications: preventing breaches of the peace and preserving the flag’s symbolic role. The Court found no evidence the burning threatened public order and held that the State’s effort to preserve the flag’s symbolic meaning was directly tied to suppressing expression and therefore content-based. Because the law was applied to punish political expression, the conviction could not stand.

Real world impact

The decision forbids punishing people criminally for burning a flag as political protest in circumstances like Johnson’s. States may still use separate public-order laws to prevent actual violence, and Congress and states may continue to issue nonbinding etiquette rules; the Court, however, resolved the case on how the Texas law was applied and did not decide every possible facial challenge.

Dissents or concurrances

Justice Kennedy concurred with the judgment; Chief Justice Rehnquist and Justice Stevens dissented, arguing the flag’s unique history and national role justified criminal prohibitions in some circumstances.