Step Four: Texas vs Johnson

Directions: Use the following reading to complete the questions to this check-in. You may re-take it as many times as you would like in order to get a 100%. 

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Texas v. Johnson (1989)

In today’s society, burning the American flag is protected as an act of free speech. Has it always been? Which Supreme Court case helped determine this issue?

In 1984, a group known as the Revolutionary Communist Youth Brigade was protesting in Dallas, Texas.  The Republican National Convention was taking place at the time, and the young demonstrators were expressing their disapproval of President Ronald Reagan.

At one point during the demonstration, one of the protesters removed an American flag from the flagpole of a local business and handed it to Gregory Johnson.  Johnson then proceeded to douse the flag in kerosene and set it ablaze in front of Dallas City Hall.  No one was injured during the incident, and no other property was harmed.  However, Johnson was arrested for violating a Texas law which prohibited the desecration (or destruction) of respected objects.  He was convicted, fined $2,000, and sentenced to one year in prison.

Johnson claimed that the Texas law violated his 1st Amendment right to free speech.  The state argued that the flag was a symbol of national unity and therefore should be protected from desecration. They also argued that Johnson’s acts presented a breach of the peace.

His case was heard by both the 5th  Court of Texas Appeals and the Texas Court of Criminal Appeals. The Texas Court of Criminal Appeals overturned his conviction, stating that Johnson’s burning of the flag was an act of symbolic speech that should have been protected by the 1st Amendment.  The state of Texas then appealed to the Supreme Court.

The Supreme Court heard oral arguments for Texas v. Johnson on March 21, 1989.  First, using the “imminent lawless action” test established in Brandenburg v. Ohio, the justices dismissed the notion that there had been a breach of the peace.  They determined that no disturbance of the peace had actually occurred, nor had Johnson been attempting to incite violence.

The Court then determined that symbolic speech was clearly protected by the 1st Amendment.  Other famous Supreme Court cases, such as Tinker v. Des Moines, had clearly established this.  They ruled that burning a flag was symbolic speech because the message being conveyed would be clear to anyone who witnessed the act.

Finally, the Court argued that even though the flag is a unique, national symbol and most would find the act of burning one distasteful, it could not be created as an exception to 1st Amendment rights.

The Court was not unanimous in their decision. In fact, it was a controversial 5-4 ruling. In a

dissenting opinion, Justice John Paul Stevens stated that the flag “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.”

The topic of flag burning remains a sensitive subject for many Americans. Texas v. Johnson made laws in 48 states unconstitutional, and many still feel that such laws should be in place today.