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Burning the American Flag: The Texas v. Johnson Case


In 1989, in a landmark ruling pitting the state of Texas against an individual identified as Johnson, they ruled in a 5-4 decision that desecrating the American flag was a symbolic speech protected by the United States Constitution First Amendment (Barnett et al., 2020). This research paper outlines the case background, appellant and respondent’s arguments, the decision of the court, and the implications of the court’s decision.

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Case Background

During the 1984 Republican National Convention held in Dallas, Texas, the individual identified as Johnson participated in a demonstration against the policies of the Reagan administration and an unidentified corporation (Barnett et al., 2020). After demonstrating throughout the city, Johnson burned the American flag while fellow demonstrators chanted. No individual was threatened or under any threat, but people who witnessed the act were deeply offended by the action of defiling what they viewed as a venerated object. Johnson was arrested and convicted for violating a Texas statute that explicitly prohibited the desecration of venerated objects. A Texas appeals court confirmed the decision of the lower court. Still, an appeal to the Court of Criminal Appeals overturned the decision holding that Johnson was within his First Amendment rights and thus could not be convicted under the circumstances (Barnett et al., 2020). In the words of the Criminal Appeals court, under the circumstances, Johnson’s act constituted expressive conduct, guaranteeing him the right to invoke his First Amendment rights.

Appellant’s Arguments

Kathi Alyce Drew represented the petitioner together with two other attorneys. In their submission to the court, the State attorneys argued that the state’s interest in the case was primarily driven by the need to preserve peace and the United States flag as a symbol of national unity. In particular, the attorneys argued that the Supreme Court’s interpretation of the First Amendment guaranteed a higher protection level for speech compared to conduct because not all conduct can be considered free speech (Barnett et al., 2020). Additionally, while the First Amendment protects symbolic speech, not all actions rise to the minimum level of free speech to warrant the protections guaranteed in the First Amendment (Barnett et al., 2020). By burning the United States flag, Gregory Lee Johnson desecrated a symbol of nationhood and national unity. Thus, regardless of whether the burned flag was personal property or not, the US government had a legitimate right to regulate and guarantee its protection because of what it symbolizes for the American people. Thus, in the interest of the American people and the United States, the court should draw clear lines that distinguish criminal conduct from expressive speech.

In Texas’ view, even though the First Amendment guarantees the right to symbolic speech, flag burning did not meet the minimum threshold to be considered symbolic speech, and therefore, the court had no choice but to ban the practice. The United States flag is sacred and represents the ideals that most people living in the country hold dear. Additionally, it has special significance when honoring individuals who give their lives in defense of the country. Thus, in light of the flag’s significance as a symbol of nationhood, and national unity, and in honor of individuals who perished defending the US, there was a prima facie case for banning its desecration.

In Texas, a statute recommended burning only torn and worn-out flags according to a procedure laid out in the law. The regulation recommended the prosecution of individuals whose flag-burning offended others (Barnett et al., 2020). The statute had safeguards that guaranteed individuals who burned the flag without ill-intent would not be prosecuted by Mr. Johnson’s malicious act of burning the flag during the flag violated the tenets of the statute by triggering an emotional reaction from other people. The state had no choice but to prohibit such actions and prosecute violators for ensuring peace prevails in the state. The state has no blanket ban on the burning of flags and allows the destruction of worn-out ones.

Respondent’s Argument

The lead attorney for the respondent was William M. Kunstlare and was flanked by one other attorney. In their submissions to the court on behalf of their client called, Gregory Lee Johnson, they argued that Mr. Johnson’s conduct did not constitute a criminal offense. Instead, his conduct was expressive conduct protected by the United States constitution. In particular, Mr. Johnson’s attorneys argued that the First Amendment explicitly protects certain aspects of symbolic speech (Barnett et al., 2020). Thus, if private property such as a flag is burned by its owner as a form of protest, and as long as nobody is harmed or public property destroyed, the government cannot criminalize such actions without tampering with an individual’s first amendment rights to free speech.

As compelling as the reasons for banning the desecration of the US flag were, the defense attorneys argued that the First Amendment did not explicitly or otherwise have provisions recognizing exceptions for flag burning prohibitions. When Mr. Johnson burned his flag, he intended to make a political statement to the effect that he opposed the Reagan administration’s policies. Additionally, and as ironic as it sounded, the respondent was conserving the ideals it symbolizes by burning the flag. For instance, the flag represents the freedom of speech, including to those who burn it. Practically, the court could not exempt this one act without adding other exemptions. Such an addition would be beyond the court’s jurisdiction.

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According to Mr. Johnson’s attorney, the Texas Act discriminated against viewpoints by allowing respectful and not disrespectful flag desecration (Barnett et al., 2020). The antipathy of the statute is further compounded by the fact that it banned actions likely to upset other people and that the First Amendment rights cannot be based on people’s feelings. The true intent of the First Amendment is to protect unpopular and even undesirable ideas. If the First Amendment did not cover unpopular speech or ideas, it would be flawed. As a citizen of the United States, Mr. Johnson’s right to symbolic free speech was protected by the US Constitution.

Court’s Decision

After considering the arguments of both parties, the Supreme Court’s majority held that the First Amendment protected Mr. Johnson’s right to symbolic speech, which included burning a personally owned American flag as a form of political protest (Schultz & Vile, 2015). In particular, the justices held that Johnson’s conviction under the Texas statute was inconsistent with the US Constitution First Amendment provisions. Justice William Brennan delivered the majority’s judgment. In the ruling, the majority of justices noted that the First Amendment protected all manner of speech, even ones that certain people or society, in general, may find repulsive or offensive. Thus, burning the flag was an expressive or symbolic speech protected by the Constitution. Society’s fury at the action was not enough just to limit the expression of free speech. Another important finding by the court is that the Texas Statute discriminated based on viewpoints by specifically prosecuting flag burning while exempting respectful actions towards venerated objects such as burning worn-out flags. According to the court’s decision, the government could not discriminate solely based on viewpoints.

The dissenting justice Rehnquist argued that the American flag, with its more than 200 years of history, embodied sacred American ideals, which justified a government ban on its prohibition. He backed up his opinion with laws passed by Congress and states prohibiting the banning of the American flag. He also argued that Johnson’s action could incite violence and trigger a breach of peace. While also dissenting with the majority opinion, Justice Stevens argued the facts of the case had nothing to do with his political views but everything to do with his conduct that “diminished the value of a national asset” (Schultz & Vile, 2015).

Implications of the Decision

As a result of the Supreme Court’s decision, Congress passed a law that explicitly banned flag burning. To bypass the Supreme Court’s rulings, Congress outlawed all forms of flag buying except the burning of torn or worn-out flags, irrespective of who was hurt. When the law was challenged in the Supreme Court, 7-3 majority justices held that the law impermissibly discriminated against individuals based on viewpoint (Barnett et al., 2020). In the public domain, the ruling of the Supreme Court served as a centerpiece of the debate on the extent the which free speech should be protected. Gregory Lee Johnson was inclined toward communism, and given the context of the cold war and threats that communism posed at the time, the ruling led to a brief and widespread uproar. By upholding Johnson’s rights under the First Amendment despite his political inclinations and indignation from the members of the public, the Supreme Court affirmed that free speech was guaranteed to everyone no matter how unpopular their speech is or their political affiliations.


Barnett, R. E., Blackman, J., & Chemerinsky, E. (2020). An introduction to constitutional law: 100 Supreme Court cases everyone should know. Wolters Kluwer.

Schultz, D., & Vile, J. R. (2015). Texas v. Johnson (1989). The Encyclopedia of Civil Liberties in America, 936–937. Web.

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