Texas V. Johnson

Texas v. Johnson (1989)

In 1984, following a protest march through the streets of Dallas, Texas against the policies of the Reagan Administration, Gregory Lee Johnson was handed an American flag. Outside the Dallas City Hall, Johnson through the flag onto the ground, poured kerosene on it, and set fire to it. Many protesters around Johnson began a chant of, “America, the red, white, and blue, we spit on you!” While many protesters agreed with what Johnson had done, there were several others who felt extremely offended. In fact, one such person felt the need to gather the remains of the flag which he then buried in his yard. The protest was a nonviolent one and no one standing nearby was hurt or threatened.

At this time, 48 of our 50 states had in place laws that prohibited the public burning of the American flag. Texas, of course, was one of these. This caused Johnson to be charged with “the desecration of a venerated object.” He was found guilty and faced a sentence of a $2,000 fine and one year in prison. Johnson, appalled by this decision, appealed his case to the Court of Appeals for the Fifth District of Texas. This court agreed with the prior one and ruled to have his conviction stand.

In response, the still angry Johnson appealed his case to the Texas Court of Criminal Appeals. This court, unlike the previous two, found Johnson to be innocent because it found that the First Amendment protected Johnson’s behavior. To arrive at this decision, the court first quickly decided that Johnson’s actions feel under the First Amendment protection of free speech because it was expressive conduct. Because of this, the state would need to prove that circumstances existed which would make the state interest outweigh the First Amendment. The court found that there was not a strong enough state interest to overrule the protection of the First Amendment and overturned the previous ruling. Upset with this, The State of Texas appealed to the U.S. Supreme Court and the Court agreed to hear the case in 1988. The decision was made in 1989.

In the Supreme Court, a 5-4 decision was made in favor of Johnson. They ruled that the First Amendment did, in fact, protect this action and found that the state’s interest was not compelling enough to override the amendment. The majority opinion for this case was written by William J. Brennan, Jr.. He was joined in his opinion by justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy. Dissents were written by Chief Justice William Rehnquist, who was joined by Byron White and Sandra Day O’Connor, and by John Paul Stevens.

The majority opinion, written by Brennan, Jr., first states that Johnson’s act constitutes speech. This precedent was set in the cases of Stromberg v. California and Tinker v. Des Moines. Both cases ruled that certain actions constituted speech. This decision came with little resistance because of these precedents. Because his action was ruled as being speech, it was therefore protected under the First Amendment unless the state of Texas could present a reason to override the amendment. The main question that needed to be argued was “whether Texas has asserted an interest in support of Johnson’s conviction that is unrelated to the suppression of expression.”

Texas decided to argue their case on two points. The first was that the U.S. has a “compelling interest in preserving a venerated national symbol.” The second was “that the state had a compelling interest in preventing breaches of peace.” This second point was quickly rejected because this act created no breach of peace nor was its intent to create immediate breaches of the peace. This ruling stems from the case of Brandenburg v. Ohio in which it was ruled that only speech that incites “imminent lawless action,” may be punished. For the first point, Texas claimed that this burning