Texas v. Johnson (1989)
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Opinion of the Court: Brennan, joined by Marshall, Blackmun, Scalia, & Kennedy
Concurring: Kennedy
Dissenting: Rehnquist, joined by White & O'Connor; Stevens.

1. Facts:

In 1984, Gregory Lee Johnson burns a flag in political protest in front of Dallas City Hall, while taking part in the "Republican War Chest Tour" opposing the policies of Reagan and administration of several Dallas-based corporations. His actions violate Texas Penal Code Ann. 42.09(a)(3)(1989) and so he was tried, found guilty, fined $2,000, and sentenced to one year in prison. However, the Texas Court of Criminal Appeals reversed the decision based on First Amendment grounds and the case was brought to the Supreme Court.

2. Legal Issues:

1. Does nonverbal, expressive conduct count as speech protected by the First Amendment?
2. Does Johnson's burning of the flag constitute expressive conduct?
3. Is the regulation of the State of Texas related to suppression of free expression, thus violating the First Amendment?
4. Is there a compelling state interest in restricting this form of expression, warranting limited application of the First Amendment under the O'Brien test?

3. Opinion of Justice Brennan for the Court

Holding: 1. Yes 2. Yes 3. Yes 4. No


1. Precedent - Brennan provides past examples where non verbal actions were said to count as speech. They were: Tinker v. Des Moines Independent Community School Dist. (wear armbands to oppose Vietnam War), Brown v. Louisiana (segregation sit-ins), Schacht v. United States (wearing military uniform to protest Vietnam), and various picketing cases. Cases have demonstrated that offense of some is not justification to limit certain behaviors, as in Street v. NY (can't punish someone for disparaging the flag verbally).
2. State Interest - Under the O'Brien test, government can regulate non-speech when they have great interest, but not if the interest is simply the suppression of freedom of speech. The State interest in this case was preventing the breaches of peace and preserving the flag as a symbol of nationhood and national unity. No breach of peace actually occurred, but the State argued that people taking offense was enough reason to limit speech as a potential threat. Legitimizing "potential" threats would invalidate the Brandenburg v. Ohio precedent that limits only likely or actual breaches of peace. To limit flag burning for this reason is redundant, since Texas already has a law limiting breaches of peace, so the court rejected this claim. Moreover, threats to the integrity of the flag's symbolism count as expressive, placing them outside the scope of O'Brien. As in Schacht, the court cannot limit the messages a symbol can communicate, and thus cannot ban use of the flag as a mechanism of protest.

Concurring & Dissenting Opinions:

Kennedy concurring:

He says this is the right decision, though it is unfortunate that veterans may feel dishonored.

Rehnquist dissenting: The flag is unique and is most revered symbol of our nation. The historical associations make it worthy of protection under the precedents set in Halter v. Nebraska (flags can't be used to advertise merchendise) and Chaplinsky v. NH (can't "addrerss any offensive, derisive, or annoying word to any person lawfully in any street of public place"). The flag burning wasn't essential to Johnson's speech and the legislature passed the law so it represents the will of the majority and should stand.

Stevens dissenting:

The value of the flag as a symbol cannot be measured. More than just a representation of nationhood, it also stands for freedom, religious tolerance, etc and to desecrate it tarnishes its value. The problem with Johnson's expression was the method and the flag is an intangible asset the warrants protection.

Significance: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." As evidenced, by the Court's ruling, which was contrary to, and overturned the laws of 48 states.

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