Landmark Supreme Court Case · Symbolic speech

Texas v. Johnson (1989)

Decided
1989
Vote
5–4
Opinion
Justice William J. Brennan Jr.
Constitutional provisions

Facts of the case

During the 1984 Republican National Convention in Dallas, Gregory Lee Johnson burned an American flag outside City Hall to protest the policies of the Reagan administration. No one was hurt, though some witnesses were deeply offended. He was convicted under a Texas law against desecrating venerated objects.

The constitutional question

Is burning the American flag as a form of political protest symbolic speech protected by the First Amendment?

The decision

Yes. Flag burning in this context was expressive conduct, or symbolic speech, protected by the First Amendment. Texas could not punish Johnson to protect the flag as a symbol or because his message was offensive.

The Court's reasoning

The state's interest in preventing breaches of the peace was not implicated, since no disturbance occurred. Its interest in preserving the flag as a symbol could not justify punishing a political message.

Why it matters

It protected offensive political expression. Congress responded with the Flag Protection Act of 1989, which the Court struck down in United States v. Eichman (1990). Proposed constitutional amendments to allow flag-burning bans have failed in the Senate.

In the Court's words

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.

Justice William J. Brennan Jr., majority opinion