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Johnson 1


No. 88-155


491 U.S. 397; 109 S. Ct. 2533; 105 L. Ed. 2d 342; 1989

March 21, 1989, Argued; June 21, 1989, Decided

I. Facts of the Case

Gregory Lee Johnson took part in a political protest in Dallas, Texas in 1984. The

protest called the “Republican War Chest Tour” was meant to disturb the Republican

National Convention where President Ronald Reagan was going to be offered the

nomination for reelection. The demonstrations were against the Reagan administration as

well as some Dallas-based corporations. Some members of the group did destroy some

property however Johnson was not one of those people. The actions in question arose

when the group converged on the Dallas City Hall. There Johnson was handed a flag

from one of his fellow protesters which was taken from one of the buildings that they had

protested in front of. Johnson then soaked the flag in kerosene and finally he lit the flag

on fire. While the flag was burning, the crowd chanted, “America, the red, white, and

blue, we spit on you!” No one was injured by this protest nor was any one threatened to

be injured. The defendant was then arrested and charged with violating a Texas statute

“which prohibits the desecration of the flag and which defines desecration as physical

mistreatment which the actor knows will seriously offend one or more persons likely to

observe or discover the action.”1 The defendant was the only one out of 100 protesters to

be arrested.
Tex. Penal Code Ann. § 42.09(a)(3) (1989)
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II. History of the Case

After the defendant was charged with violating the Texas statute, Johnson was

convicted in a Texas trial court. This conviction led to a sentence of a year in prison as

well as a $2,000 fine. After his conviction, Johnson appealed the conviction on grounds

that it violated his freedom of speech which is protected under the First Amendment. The

Court of Appeals for the Fifth District of Texas at Dallas held that the state statute was fit

to be looked at under “First Amendment scrutiny”2, however, they also held that the

statute was lawful to uphold because there were issues of preserving the public peace as

well as for maintaining the unity of the nation as symbolized within the flag. Another

look at the case from the Court of Criminal Appeals for Texas held that the conviction

did violate the First Amendment rights because the statute was too vague and because it

“was not adequately supported by the state's purported interest in preserving a symbol of

unity.”3 The Court also stated that if the main argument against the defendant was that he

was violating the peace by burning the flag that Tex. Penal Code Ann. § 42.01 (1989)

was better tailored for prosecution of disturbing the peace and therefore this charge

should be thrown out. Because the Court of Criminal Appeals threw out the conviction,

that aspect of the case did not need to be looked at, however, Johnson had also raised the

question as to if the statute itself was in violation of his First Amendment rights and

therefore the Supreme Court granted certiorari. With certiorari granted there were

several amici curiae filled. Amici curiae were filled on behalf of reversing the decision

by the Legal Affairs Council by Wyatt B. Durrette, Jr., and Bradley B. Cavedo; and for

706 SW2d 120
755 SW2d 92
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the Washington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar. Amici

curiae were filled on behalf of affirming the decision by the American Civil Liberties

Union et al. by Peter Linzer, James C. Harrington, and Steven R. Shapiro; for the Christic

Institute et al. by James C. Goodale; and for Jasper Johns et al. by Robert G. Sugarman

and Gloria C. Phares.

III. Votes of the Case

Chief Justice William H. Rehnquist - D

Justice William J. Brennan, Jr. + O
Justice Byron R. White -
Justice Thurgood Marshall +
Justice Harry A. Blackmun +
Justice John Paul Stevens - DC
Justice Sandra Day O’Connor -
Justice Antonin Scalia +
Justice Anthony Kennedy + C
Legend: +: voted with the majority opinion
-: voted with the minority opinion
O: wrote the opinion of the court
C: wrote a concurring opinion
D: wrote the dissenting opinion
DC: wrote a concurring dissent opinion

IV. The Opinion of the Court

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Justice Brennan starts out by stating what the Court must do in order to

adequately look at the case. The Court is responsible firstly to make sure that Johnson

has grounds to claim that his First Amendment rights were violated. They must do this

by seeing if the burning of the flag by Johnson constitutes an expression conduct thereby

giving him standing. The step after the Court figures that out is to decide if the Texas

statute is directly tied to the restraint of free expression. If the Court decides that the

“state’s regulation is not related to expression, then the less stringent standard we

announced in O’Brien for regulations of noncommunicative conduct controls.”4

However, if the Court decides that the Statute is in violation of the First Amendment,

then “we must ask whether this interest justifies Johnson’s conviction under a more

demanding standard.”5

While looking at the specific case, the Court found that Texas admitted that

Johnson’s behavior was considered expressive conduct. So the question of if Texas had

an interest that was “unrelated to the suppression of expression”6 still stood. Texas

defines the ‘interests’ that would be necessary for the excusing of the charge would be:

“preventing the breaches of peace, and preserving the flag as a symbol of nationhood and

national unity.”7 Because there was no actual disturbing of the peace that took place in

reaction to the flag burning, the Court stated, “We have not permitted the Government to

assume that every expression of a provocative idea will incite a riot…”8 With that idea,

the Court determined that for it to be enforced the expression “is directed to inciting or

producing imminent lawless action.”9 Along those same lines, the court determined that
491 U.S. 397
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491 U.S. 397
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Johnson’s expression could not be seen as ‘fighting words’ because “no reasonable

onlooker would have regarded Johnson’s generalized expression of dissatisfaction with

the policies of the Federal Government as a direct personal insult or an invitation to

exchange fisticuffs.”10 With the aforementioned reasons, the Court found that the state’s

interest in protecting the peace was null. As for the argument that the flag needs to be

preserved because of unity, the Court decided that “Johnson’s political expression was

restricted because of the content of the message he conveyed. We must therefore subject

the State’s asserted interest in preserving the special symbolic character of the flag to “the

most exacting scrutiny”11 Under Texas law it is considered to be mistreating the flag if

the action “cast(s) doubt on either the idea that nationhood and national unity are the

flag’s referents or that national unity actually exists.”12 To which the Court finds that “if

there is a bedrock principle underlying the First Amendment, it is that the Government

man not prohibit the expression of an idea simply because society finds the idea itself

offensive or disagreeable.”13 The Court went on to say that the Government has never

been able to “ensure that a symbol be used to express only one view of that symbol or its

referents…”14 Justice Brennan concluded the decision of the Court by stating,:

The way to preserve the flag's special role is not to punish those who feel
differently about these matters. It is to persuade them that they are
wrong… And, precisely because it is our flag that is involved, one's
response to the flag- burner may exploit the uniquely persuasive power of
the flag itself. We can imagine no more appropriate response to burning a
flag than waving one's own, no better way to counter a flag burner's
message than by saluting the flag that burns, no surer means of preserving
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the dignity even of the flag that burned than by -- as one witness here did
-- according its remains a respectful burial. We do not consecrate the flag
by punishing its desecration, for in doing so we dilute the freedom that this
cherished emblem represents.15

Justice Kennedy wanted to make it known that he was not happy with the

fact that people were able to burn the flag, but nonetheless, he stated that “the flag

protects those who hold it in contempt…”16. Therefore, Justice Kennedy decided

that it was Constitutional to have to right to burn the flag.

V. Dissenting Opionion

Chief Justice Rehnquist in writing the dissent stated that the flag was a

valid symbol of our Nation, “it does not represent the views of any particular

political party, and it does not represent any particular political philosophy. The

flag is not simply another “idea” or “point of view” competing for recognition in

the marketplace of ideas”17 The dissenters held that Johnson’s actions were not

necessary to communicate his ideas and frustrations. “Johnson was free to make

any verbal denunciation of the flag that he wished; indeed he was free to burn the

flag in private. He could publicly burn other symbols of the government or

effigies of political leaders.”18 Justice Rehnquist’s point here is that Johnson was

not arrested until the burning of the flag. Before the burning, Johnson exercised

his First Amendment rights thoroughly.

Concurring to the Dissent:

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Justice Stevens points out that if the First Amendment covers the burning

of the flag, it is almost to the point where there might be a “creation of a federal

right to post bulletin boards and graffiti on the Washington Monument might

enlarge the market for free expression, but at a cost I would not pay.”19 Justice

Stevens goes on to point out that the burning of the flag is devaluing it which will

eventually make the burning of the flag less of a heart-felt issue; Americans

would become callous to the meaning of the flag.

491 U.S. 397