Texas v. Johnson (1989) is the U.S. Supreme Court case where the Court held that state laws which criminalize flag burning violated the First Amendment’s protection of freedom of speech. Find the full opinion here.
At the 1984 Republican National Convention, Gregory Lee Johnson burned an American flag as a political demonstration. Texas law prohibited “desecration of a venerated object,” and Texas sentenced Johnson to one year imprisonment. The Texas Criminal Court of Appeals reversed Johnson’s conviction, finding flag burning as protected political speech under the First Amendment, and the State appealed to the U.S. Supreme Court, who granted certiorari.
In a 5–4 decision, the U.S. Supreme Court in an opinion written by Justice Brennan, and joined by Justice Marshall, Justice Blackmun, Justice Scalia, and Justice Kennedy, held that the Texas statute criminalizing burning of an American flag violated the First Amendment. The Court first considered whether flag burning is expressive conduct, and found that it is because there was an intent to convey a particular message—i.e. Johnson burned it as a sign of protest at a political convention. The Court then considered whether Texas has a sufficiently compelling interest in upholding the conviction without regard to the expressive conduct. Texas argued that its interests were preventing disturbances of the peace and preserving the flag as a symbol of national unity. The Court found the first interest irrelevant, since there was no disturbance of the peace, and found that the second interest did not justify the conviction. The Court rejected the idea that a state may promote its own idea of what the flag means by prohibiting expressive conduct related to the flag. Governments cannot simply prohibit political expressions it finds offensive, and the Court holds that this principle is independent of the method with which one seeks to express disagreement.
Justice Kennedy wrote a separate concurring opinion, emphasizing that the principles for which the American flag stand are reflected in the Court’s decision. Chief Justice Rehnquist dissented, arguing that the flag is not just another political symbol, but holds a special place in American culture and therefore burning it is likely not a protected form of expression.
[Last updated in April of 2021 by the Wex Definitions Team]