Texas v. Johnson
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| Texas v. Johnson | ||||||||||||
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 Supreme Court of the United States |
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| Argued March 21, 1989 Decided June 21, 1989 |
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| Holding | ||||||||||||
| A Texas statute that criminalized the desecration of the American flag violated the First Amendment. Texas Court of Criminal Appeals affirmed. | ||||||||||||
| Court membership | ||||||||||||
| Chief Justice: William Rehnquist Associate Justices: William J. Brennan, Byron White, Thurgood Marshall, Harry Blackmun, John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy |
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| Case opinions | ||||||||||||
| Majority by: Brennan Joined by: Marshall, Blackmun, Scalia, Kennedy Concurrence by: Kennedy Dissent by: Rehnquist Joined by: White, O'Connor Dissent by: Stevens |
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| Laws applied | ||||||||||||
| U.S. Const. amend. I; Tex. Penal Code ยง 42.09(a)(3) | ||||||||||||
Texas v. Johnson, [1], was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag in force in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was protected speech under the First Amendment to the United States Constitution.
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[edit] Background of the case
During the 1984 Republican National Convention in Dallas, Texas, respondent Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade (youth wing of the Revolutionary Communist Party, USA) and a leader of the Corporate War Chest Tour (an organized protest of the 1984 Republican National Convention), participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning.
Johnson was convicted of desecrating a venerated object in violation of a Texas statute and was sentenced in the Dallas County Criminal Court to one year in prison and a fine of $2,000. The intermediate Texas appellate court affirmed the conviction, but the Texas Court of Criminal Appeals (the final court of appeals for criminal cases in Texas) reversed the conviction. The court held that the First Amendment prevented the state from punishing Johnson for burning the flag in those circumstances. The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. The court concluded that Texas could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. It also held that the statute did not meet the state's goal of preventing breaches of the peace, since it was not drawn narrowly enough to encompass only those flag burnings that would likely result in a serious disturbance, and since the flag burning in this case did not threaten such a reaction. Further, it stressed that another Texas statute prohibited breaches of the peace and could be used to prevent disturbances without punishing this flag desecration.
Because the Court of Criminal Appeals reversed Johnson's conviction on the grounds that the flag burning statute was unconstitutional as applied to him, the state court did not address Johnson's argument that the statute was, on its face, unconstitutionally vague and over broad. As a result, the Supreme court granted certiorari.
[edit] The Court's decision
The opinion of the court came down as a controversial 5-4 decision, with the majority opinion written by the elderly William J. Brennan, Jr. in his penultimate term on the Court. The question the Supreme Court had to answer was: "Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?".
In determining this, the court first considered the question of whether the First Amendment reached non-speech acts, since Johnson was convicted of flag desecration rather than verbal communication, and, if so, whether Johnson's burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction.
The First Amendment literally forbids the abridgment only of "speech", but the court reiterated their long recognition that its protection does not end at the spoken or written word. This was an uncontroversial conclusion in light of cases such as Stromberg v. California (display of a red flag as speech) and Tinker v. Des Moines Independent Community School District (wearing of a black armband as speech).
The court rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea", but acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments". In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court asked whether "an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."
The court found that, "Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment... Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent." The court concluded that, while "the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word," it may not "proscribe particular conduct because it has expressive elements."
Texas had conceded, however, that Johnson's conduct was expressive in nature. Thus, the key question considered by the Court was "whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression."
At oral argument, the state defended its statute on two grounds: first, that states had a compelling interest in preserving a venerated national symbol; and second, that the state had a compelling interest in preventing breaches of the peace.
As to the "breach of the peace" justification, however, the court found that "no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag," and Texas conceded as much. The Court rejected Texas's claim that flag burning is punishable on the basis that it tends to incite breaches of the peace by citing the familiar test of Brandenburg v. Ohio that the state may only punish speech that would incite "imminent lawless action," finding that flag burning does not always pose an imminent threat of lawless action. The Court noted that Texas already punished "breaches of the peace" directly.
The most contentious issue before the Court, then, was whether states possessed an interest in preserving the flag as a unique symbol of national identity and principles. Texas argued that desecration of the flag impugned its value as such a unique national symbol, and that the state possessed the power to prevent this result.
The court rejected this argument, finding that the state's interest depended on the specific meaning it had attached to the flag through the flag desecration statute. "If there is a bedrock principle underlying the First Amendment", the decision of the court read, "it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The Court consequently affirmed the ruling of the Texas Court of Criminal Appeals (i.e., the Court upheld the reversal of Johnson's conviction).
Anthony Kennedy wrote a short concurrence. In the concurring opinion, Kennedy stated that he fully agreed with the decision and the reasoning behind the decision. However, he also voiced his sympathy for the four dissenting Justices.
[edit] Rehnquist's dissent
Brennan's opinion for the court generated two dissents. William H. Rehnquist, joined by two other justices, argued that the "uniqueness" of the flag "justifies a governmental prohibition against flag burning in the way respondent Johnson did here." Rehnquist wrote,
The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying 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. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.
Rehnquist also argued that flag burning is "no essential part of any exposition of ideas" but rather "the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." He goes on to say that he felt the statute in question was a reasonable restriction only on the manner in which Johnson's idea was expressed, leaving Johnson with, "a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy." He quotes a 1984 Supreme Court decision in City Council of Los Angeles v. Taxpayers for Vincent, where the majority stated that, "the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places."
[edit] Stevens' dissent
Justice John Paul Stevens, often counted as a First Amendment liberal, also wrote a dissenting opinion. Stevens, a World War II veteran, was visibly offended at oral argument by the flippancy of Johnson's counsel, William Kunstler, in arguing for Johnson's right to destroy the flag. Stevens argued that the flag "is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It 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." Stevens concluded, therefore, that "The case has nothing to do with 'disagreeable ideas.' It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset," and that Johnson was punished only for the means by which he expressed his opinion, not the opinion itself.
[edit] Subsequent history
The Court's decision, which invalidated the laws in force in 48 of the 50 states, set off a wave of protest that continues to this day, as many Americans are deeply outraged by desecration of the flag. Subsequent to Texas v. Johnson, proposals were introduced year after year in Congress to amend the Constitution to allow the federal government and states to prohibit flag burning. On several occasions this amendment came close to passage, obtaining the requisite two-thirds majority in the House, only to fail in the Senate.
Congress did, however, pass a statute, the 1989 Flag Protection Act, making it a federal crime to desecrate the flag. In the case of United States v. Eichman, 496 U.S. 310 (1990)[2], that law was struck down by the same five person majority of justices as in Johnson (in an opinion also written by Justice Brennan).
Since then, Congress has considered the Flag Desecration Amendment several times. The amendment usually passes the House of Representatives, but has always been defeated in the Senate. The most recent attempt occurred when S.J.Res.12[3] failed by one vote on June 27, 2006.
[edit] Notes
[edit] External links
- Text of the decision
- Audio recording of oral arguments
- First Amendment Library entry on Texas v. Johnson
- Thoughts on Flag Burning and other statements by Edward Hasbrouck and Joey Johnson
