After a protest which involved burning the American flag, one of the participants was convicted of a crime by a Texas law that focused on the defilement of venerated objects. In Texas v. Johnson (1989), it was determined that the act could be considered a piece of speech that was protected by the First Amendment. Texas v. Johnson (1989) is one of the major cases related to the freedom of speech, which is especially true for symbolic speech that incorporates the statements made without written or spoken words (Rossum & Tarr, 2018). The present paper will consider the historical background of the case, describe its connection to the First Amendment, and offer an analysis of the key opinions and final decisions to demonstrate the value of this case for free speech.
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Historical Background Including the Issue Argued
Texas v. Johnson (1989) focuses on §42.09 of the Texas Penal Code, especially the section that prohibited desecrating the American flag. As a part of a protest which targeted the “policies of the Reagan administration and of certain Dallas-based corporations,” Gregory Lee Johnson “burned the American flag” (Texas v. Johnson, 1989, p. 397). He was then convicted for this act by the above-described law. No injuries or threats were reported during or after the protest, but the flag burning was described as a serious offensive act by multiple witnesses. Texas v. Johnson (1989) considered the case to determine if Johnson’s conviction was constitutional.
The Constitutional Question
From the perspective of the Constitution of the US, Texas v. Johnson (1989) is connected to the topic of free speech. Here, it is important that Johnson’s act was a part of a protest. From this perspective, it could be viewed as a symbolic attempt at expressing one’s position (Kanovitz, 2015). As a result, the case and the literature on the topic connect Texas v. Johnson (1989) to the Free Speech Clause of the First Amendment (Kanovitz, 2015; Rossum & Tarr, 2018). A few notes regarding the First Amendment can help to frame the analysis of Texas v. Johnson (1989).
The First Amendment prevents Congress from establishing any legislation that would restrict the freedom of religion, speech, and press, as well as the right to peaceful gatherings and petitioning (U.S. Const. amend. I). As pointed out in Texas v. Johnson (1989), freedom of speech should not be limited to spoken or written words; rather, it encompasses what could be described as freedom of expression.
There are limitations to the First Amendment which are connected to threats and fighting words. The latter term refers to the speeches that are not meant to express a position; rather, they are made to provoke violent conduct and disrupt public order (Rossum & Tarr, 2018). However, most types of speech are protected by the First Amendment, including hate speeches as long as they do not become fighting words (Kanovitz, 2015). Thus, speech needs to be harmful to be exempt from the First Amendment’s protection (Dimino, 2018). This fact was the primary consideration of the court in reviewing Texas v. Johnson (1989).
An Analysis of the Decision
The final decision of the court that considered Texas v. Johnson (1989) involved overturning Johnson’s conviction; the following arguments were used in its favor. According to the court, the application of the First Amendment to Texas v. Johnson (1989) was required because Johnson’s act was connected to a protest, which made it a way of expressing his political viewpoint. The court acknowledged the difficulty of deciding whether a symbolic action could be viewed as a piece of speech.
However, the court established that in the described case, the act was a way of expressing an opinion by other cases related to the topic. In addition, the court pointed out that the flag burning could not be viewed as harmful; it did not call for violence and did not result in it. Thus, the court justified the use of the First Amendment since the flag burning was defined as non-fighting speech (Rossum & Tarr, 2018), which is why it had to be protected.
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The court further acknowledged the interest of the government in defending the flag as one of its symbols, but it also stated that this interest could not justify the suppression of free speech. Texas v. Johnson (1989) specifically noted that the court focused on the question of the constitutional or unconstitutional application of the Texas law to Johnson’s case and not the nature of the legislation itself. Since the Constitution requires the protection of free speech (Kanovitz, 2015); Rossum & Tarr, 2018), convicting Johnson for it was viewed as unconstitutional. To summarize, the court explains its position and proves the soundness of its arguments to justify the decision.
The Majority Opinion
The majority opinion expressed by the court can be summarized as follows. The court acknowledged that Johnson attempted to communicate his political position through his action, which is why the First Amendment had to be applied to the case. From that perspective, Johnson was “convicted for engaging in expressive conduct” which was unconstitutional; the court could not find the attempts at disrupting peace in Johnson’s act (Texas v. Johnson, 1989, p. 420). Justice Brennan, who presented the court’s opinion, highlighted that while the State should protect its symbols, this interest could not justify prosecuting a person for expressing their perspective.
Dissenting and Concurring Opinions
Some dissenting opinions were voiced and can be found in Texas v. Johnson (1989). According to Justice Stevens and Justice Rehnquist (joined by Justice White and Justice O’Connor), the American flag should be considered a special venerated object.
From their viewpoints, it could be regarded as a symbol of the nation, as well as all the values upheld by that nation, which is why it had to be protected from desecration. Justice Stevens highlighted the fact that the Texas law did not focus on the content of Johnson’s message; rather, it condemned how that message was conveyed. Therefore, from this perspective, the point of Johnson’s act was not important; what mattered to Justice Stevens was the reaction of the people who observed the desecration of the flag.
Justice Rehnquist also highlighted the feelings of the observers while suggesting that the act of burning the flag was less of a speech and more of an “inarticulate grunt or roar” (Texas v. Johnson, 1989, p. 432). In other words, the Justice appears to have called to question the effectiveness of the protest. Justice Rehnquist further pointed out that Johnson would not be prevented from expressing his position in any other way, which is why the Texas law was not unconstitutional since it did not limit the freedom of speech that did not involve the flag.
As for the concurring opinion, according to Justice Kennedy, Johnson’s act could be viewed as problematic and distasteful, but overturning the conviction was necessary from the perspective of the Constitution. Justice Kennedy’s point was that the members of a court might have to abandon their response to an event and focus on the Constitutional and legislative context.
Personal Perspective: A Conclusion
Texas v. Johnson (1989) demonstrated the dedication of the US justice system to the fundamental freedoms upheld by its Constitution. As a result, it became a very important case that illustrated the history of the First Amendment and its application by the US courts (Kanovitz, 2015; Rossum & Tarr, 2018). I agree with the majority opinion while acknowledging some of the arguments of the dissenting one and disagreeing with some of Justice Rehnquist’s perspectives. I also consider the concurring opinion to be critical and worth mentioning.
On the one hand, I recognize that the US flag, as well as many other symbols that can signify particular affiliations, has a special status. As a result, I understand the reasoning behind the Texas law and the dissenting opinion of the Justices. However, I also think that the described law was not constitutional: the desecration of the flag, as well as any other symbol, could indeed be a political protest, and people should be allowed the freedom of expression based on the First Amendment.
Furthermore, I believe that it is important to remember that Johnson’s act was not aimed at and has not resulted in disturbing the peace (Rossum & Tarr, 2018); it could not be described as any form of fighting words since it did not aim to provoke violence. Thus, Johnson’s act should be considered a piece of symbolic speech that must be protected by the First Amendment.
I do not agree with Justice Rehnquist’s belief that Johnson’s act was inarticulate mostly because I think that this perspective is very subjective. There may be people who would agree with this assessment, but the fact that this act was included in the protest implies that there were people who disagreed and viewed the burning of the flag as meaningful. Most importantly, however, I think that the words of Justice Kennedy apply to this criticism: while a judge may personally find the protest insufficiently articulate, his or her ideas about Johnson’s action or its usefulness should not affect the final decision. The personal perspective and especially feelings of a judge should not prevent him or her from objectively analyzing the action of a citizen.
I agree with Justice Rehnquist that a protest could be carried out through different means. However, the focus of the case was on the fact that a specific piece of Texas legislation (when applied to Johnson’s situation) resulted in restricting his free speech. Thus, despite the scandalous nature of the event, I think that the court made the correct choice by overturning Johnson’s conviction. This way, the court upheld one of the central freedoms granted to the US citizens while remaining unbiased and unaffected by the emotional response that the protest could provoke. In summary, I feel that Texas v. Johnson (1989) is an important case from the perspective of protecting our freedoms which also presents an interesting concurring opinion that could apply to justices’ duties in the modern-day.
Dimino, M. R. (2018). Minnesota Voters Alliance v. Mansky strikes down a vague ban on speech in polling places, but future bans may be upheld. Federalist Society Review, 19, 18-16. Web.
Kanovitz, J. (2015). Constitutional law for criminal justice (14th ed.). New York, NY: Routledge.
Rossum, R., & Tarr, G. (2018). American constitutional law (10th ed., Vol. 2). New York, NY: Routledge.
Texas v. Johnson, 491 U.S. 397 (1989) U.S. Const. amend. I.
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