the First Amendment protects free speech
including expressive conduct but does it
shield someone burning the American flag
in protest in Texas versus Johnson the
United States Supreme Court answered
that question in 1984 Gregory Lee
Johnson participated in a protest of the
Republican National Convention outside
the Dallas City Hall
Johnson doused an American flag with
kerosene and set it on fire as the flag
burned protesters chanted quote America
the red white and blue we spit on you
unquote Johnson was charged with
desecration of a venerated object under
Texas law the trial court convicted
Johnson finding him $2,000 and
sentencing him to one year in prison
the Court of Appeals for the fifth
District of Texas affirmed
however the Texas Court of Criminal
Appeals reversed concluding that
Johnson's punishment violated the First
Amendment the United States Supreme
Court accepted the case to determine
whether states could criminalize burning
the American flag the court concluded
that flag burning is expressive conduct
protected by the First Amendment
as a result state laws criminalizing
flag burning were content-based speech
restrictions that didn't survive
constitutional scrutiny writing for a 5
justice majority justice brennan
concluded that the First Amendment
protected flag burning because it
contained a sufficient level of
communication by burning the flag
Johnson intended to convey a particular
message and it was likely that anyone
who witnessed his conduct would
understand that message for First
Amendment purposes the government has
more leeway in regulating expressive
conduct than it does in regulating
written or spoken words when speech and
non-speech elements are combined in a
single course of conduct a sufficiently
important governmental interest in
regulating the non speech element can
justify an incidental limitation on
First Amendment freedoms to qualify for
this more lenient standard the state has
to assert an interest unrelated to the
suppression of expression
Texas asserted two possible interests to
justify Johnson's punishment first
flag-burning caused breaches of the
peace second Texas wanted to preserve
the flag as a symbol of national unity
the first interest wasn't implicated in
Johnson's case Texas admitted that no
actual breach of the peace occurred the
second interest was directly related to
Johnson's political message and
therefore didn't qualify for the more
lenient standard because the restriction
on Johnson's speech was content-based
the courts objected Texas's asserted
interest to the most exacting
constitutional scrutiny under that
scrutiny the state's interest in
preserving the flag as a symbol of
national unity didn't justify Johnson's
punishment the court didn't object to
Texas as goal only its means preserving
the flag as a symbol of national unity
was a legitimate state interest that
could support laws regulating how the
flag may be displayed but it couldn't
justify criminal punishment for burning
the flag the ideal way to preserve the
flags special role in society was not by
punishing those who express contrary
views but by attempting to persuade them
with further dialogue therefore the
court affirmed the judgment of the Texas
Court of Criminal Appeals holding that
the First Amendment barred criminal
punishment for burning the American flag
in protest
Justice Kennedy concurred opining that
while he found flag burning distasteful
the facts and applicable law compelled
the majority's result Chief Justice
Rehnquist joined by justices white and
O'Connor dissented Rehnquist argued that
Johnson had many ways of making his
point and that Texas law criminalized
just one of them Johnson remained free
to express his viewpoint in a myriad of
ways for Rehnquist flag-burning was a
form of fighting words which is speech
that inflicts direct injury or incites
an immediate breach of the peace any
expressive benefit derived from flag
burning was clearly outweighed by the
public interest in maintaining peace and
order Rehnquist also pointed out that 48
states and the federal government agreed
with this reasoning as they had statutes
prohibiting flag burning on their books
to
justice Stevens also dissented reasoning
that Johnson wasn't prosecuted for his
message but for the method he used to
convey it permitting flag-burning
tarnishes the flags value in contrast
criminalizing flag-burning was only a
trivial burden on free speech
particularly in light of the many
alternative methods one has for
communicating political ideas Texas
versus Johnson remains a source of deep
disagreement in 2006 Congress tried to
amend the Constitution to prohibit flag
burning and fell short by only one vote