Texas v. Johnson - Further Readings

Petitioner
State of Texas
Respondent
Gregory Lee Johnson
Petitioner's Claim
That the Texas statute against "desecration of venerated objects," in this instance burning an American flag, did not violate Gregory Lee Johnson's constitutional rights.
Chief Lawyer for Petitioner
Kathi Alyce Drew
Chief Lawyer for Respondent
William M. Kunstler
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr. (writing for the Court), Anthony M. Kennedy, Thurgood Marshall, Antonin Scalia
Justices Dissenting
Sandra Day O'Connor, William H. Rehnquist, John Paul Stevens, Byron R. White
Place
Washington, D.C.
Date of Decision
21 June 1989
Decision
The Texas statute was declared unconstitutional.
Significance
No matter how unpopular it is to burn an American flag, the First Amendment protects that and other forms of political expression and symbolic speech.
Gregory Lee Johnson, nicknamed "Joey," was a fervent supporter of an Americancommunist movement known as the Revolutionary Communist Youth Brigade. Whenthe Republican National Convention met in Dallas, Texas in 1984, Johnson decided to participate in a political demonstration called the "Republican War Chest Tour." The demonstration's purpose was to protest the policies of the Reagan Administration.
On 22 August 1984 Johnson, amidst a crowd of approximately 100 other demonstrators, unfurled an American flag. He splashed it with kerosene and set it onfire, while the other demonstrators chanted: "America, the red, white, and blue, we spit on you." After the flag burned, the demonstrators left, and one of the many shocked onlookers gathered the burnt remains for burial in his backyard. No one was hurt, and no property other than the flag was destroyed. Both the press and the police were at the scene of the flag burning, and when police reinforcements arrived shortly thereafter they arrested Johnson.
Johnson was prosecuted under a Texas law that made it illegal to "intentionally or knowingly desecrate . . . a state or national flag." Johnson was convicted in Dallas County Criminal Court No. 8 of desecration of a venerated object and sentenced to a year in prison and a $2,000 fine. The prosecutor blatantly asked the jury to convict Johnson for the political symbolism expressed bythe flag-burning incident: "And you know that he's also creating a lot of danger for a lot of people by what he does and the way he thinks."
The Court of Appeals of Dallas, Texas affirmed Johnson's conviction on 23 January 1986. On 20 April 1988 the Texas Court of Criminal Appeals reversed thecourt of appeals and the trial court, and threw out Johnson's conviction. Thecourt of criminal appeals rejected the state's argument that the antiflag-burning statute was a valid measure to preserve a symbol of national unity: "Recognizing that the right to differ is the centerpiece of our First Amendmentfreedoms, a government cannot mandate by fiat a feeling of unity in its citizens."
The state of Texas appealed to the U.S. Supreme Court. Johnson's attorney wasWilliam M. Kunstler, and the state's attorney was Kathi Alyce Drew. The parties argued their case before the Supreme Court on 21 March 1989.
Justice Brennan authored the decision for the majority of the court, which was issued on 21 June 1989. By a 5-4 vote the justices upheld the Texas Court of Criminal Appeals decision, stating that:

The way to preserve the flag's special role is not to punish those who feel differently about thesematters. It is to persuade them that they are wrong . . . We can imagine nomore appropriate response to burning a flag than waving one's own, no betterway to counter a flag-burner's message than by saluting the flag that burns,no surer means of preserving the dignity even of the flag that burned than by, as one witness here did, according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.

The Supreme Court's decision sparked a vigorous but brief political uproar, culminating in President George Bush proposing an antiflag-burning constitutional amendment which quietly died. The lasting legacy of the Johnson case was to demonstrate the First Amendment protection of forms of political expression, extends even to those as unpopular and provocative as burning the national flag.
Related Cases

• Stromberg v. California, 283 U.S. 359 (1931).
  
• United States v. O'Brien, 391 U.S. 367 (1968).
  
• United States v. Eichman, 496 U.S. 310 (1990).

Flag Burning: Protected Expression or Desecration?
Political reaction quickly mounted to the Supreme Court's Texas v. Johnson decision and the striking down of the Flag Protection Act of 1989. The burning of an American flag had become a valid gesture of expressive freedom.A constitutional amendment prohibiting the desecration of the U.S. flag was introduced in Congress in 1995, and reintroduced again in 1997.
Amendment proponents led by the Citizens Flag Alliance (CFA) contended freedom of expression guarantees were never absolute, and the flag, a national symbol of U.S. society, deserved protection from desecration. CFA rebuffed the idea flag burning is "speech." Rather, they regarded it "conduct" outside constitutional protection. Proponents maintained the proposals did not restrict freedom of speech since persons could still freely speak or write their views on the government or flag.
Amendment opponents including the American Civil Liberties Union (ACLU) insisted the new amendment would restrict the First Amendment's freedom of expression guarantees. They saw the flag as a symbol standing for the freedom everyAmerican enjoys including the right to burn that symbol. The ACLU argued a flag burning ban would open the door for legislators to restrict other individual freedoms. Besides, the ACLU considered flag burning as a rare event not meriting a constitutional amendment.
Sources
West's Encyclopedia of American Law. Minneapolis/St. Paul, MN: West Publishing, 1998.