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Texas v. Johnson: Flag Burning and Free Speech


The case Texas v. Johnson explores the scope of protection that the First Amendment can grant to citizens. During a protest, Johnson burned an American flag and was later convicted. He appealed the decision and won which prompted Texas to send the case to the Supreme Court. The court’s majority opinion argued that flag burning was a form of free speech and should be protected by the First Amendment. Some dissenting opinions placed the value of the flag above the idea of free speech, but concurring views recognized the decision to be fair.

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Historical Background

In 1984, a political demonstration was held in Dallas, Texas. This protest had people marching, chanting, and presenting their opinion against some local corporations and policies of Reagan and his administration (FindLaw, 2018). During this demonstration, one of the attendees, Gregory Lee Johnson, received an American flag from one of the participants who had taken this flag from another building. At some point in the march, Johnson soaked the flag with kerosene and burned it. The chants from other attendees followed the action of the participant. After the event’s end, none of the participants were punished for any violations of peace, except for Johnson who was tried for desecrating a venerated object and convicted by the Texas court. The sentence included one year in prison and a $2,000 fine (FindLaw, 2018).

Later, Johnson pleaded to the Texas Court of Appeals which overturned the initial decision and stated that it was unjust to convict Johnson for his actions at the march. The court based its decision on the First Amendment which ensures the protection of freedom of speech. The case was then sent to the Supreme Court by the State of Texas which asked to review it and make a decision. The Supreme Court reinforced the verdict of the Appeals Court and also remarked the protection of Johnson’s actions by the First Amendment. While the vote resulted in a controversial five to four decision, the majority vote sided with Johnson and highlighted a discriminatory nature of Texas’ law that prohibited some ways of flag treatment.

Constitutional Question

The central constitutional question that lies at the foundation of this case is the scope of protection that the First Amendment can grant to the citizens (Schubert, Dye, & Zeigler, 2015). First of all, the issue of flag desecration as an act of speech was discussed by the Supreme Court, examining whether such a type of expression could be considered a form of speech, thus, falling under the protection of the First Amendment.

Second, the value of the American flag as a venerated object was also investigated in this case. The connection between such symbolic objects and their possible influence on the court’s decisions was another constitutional issue considered in this case. The main questions that the Supreme Court formulated for its hearings included Johnson’s right to burn the flag and the description of flag burning as a form of speech and expression of personal beliefs and not as a violence-enticing action. Furthermore, the State also raised such questions as the possibility to justify the conviction for flag burning as it was an offensive desecration of a symbol of nationhood.

Decision Analysis

The decision of the Supreme Court and the Court of Criminal Appeals was based on extensive discussions about the nature of Johnson’s actions and the broad scope of use of the First Amendment. First, the Appeals Court examined the claims of Johnson regarding his possible intentions and reasons for such actions. The court concluded that, in this case, flag burning could be recognized as a form of symbolic speech that falls under the protection of the First Amendment (Schubert et al., 2015). The court argued that speech does not have to include only written and spoken words and should also incorporate various messages that are transmitted by one individual to another in the form of symbolic expression of ideas and concepts (FindLaw, 2018). For example, the process of burning a flag during a political protest could hold a special meaning directly connected to the march’s purpose and be considered as a type of message that the protesters were trying to send to the intended audience.

Furthermore, the communicative nature of this action was also supported by the non-violent and non-disturbing behavior of protesters. They did not put citizens at risk and did not damage private property, which could be considered the disturbance of the peace. Therefore, the process of flag burning was devoid of any adverse outcomes to citizens, although some may have been offended as a result (FindLaw, 2018). The lack of malicious intent in protesters’ actions granted them protection by the First Amendment.

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According to Balter (2001), the final decision of this case was based on the participating audiences. The author claims that four types of audiences can influence the courts’ majority and dissenting opinions and provide different foundations for their claims. The first group is the reading audience which includes every person that may read the case’s final decision (Balter, 2001). This group does not account for individual opinions of the case and awaits judges to create a strong argumentation for the decision. Thus, the final majority opinion of the case is filled with logical conclusions and supported statements that are proven by the existing precedents and the law’s contents. The second type is the audience which was present during the incident that was examined by the court. Here, it means attendees or witnesses of the protest who saw the flag being burned. It is possible that the behavior of this group could have influenced the final decision of the courts and contributed to their understanding of free speech.

The third and fourth types of audiences are represented in the final opinion of the courts. The former is the constructed audience that was present at the time of the flag being burned. However, here, the individuals’ reaction to this incident is expressed in the court’s decision with the use of particular examples. Finally, the event’s attributed audience also described the opinion, but it uses normative claims and ideals of human behavior (Balter, 2001). Therefore, the decision has some particular incidents and experiences that show the real side of the event and also some idealized situations which are presented to the audience as a perfect example.

Majority Opinion

The controversial decision of the majority presented by the Supreme Court agreed with Johnson. The opinion was delivered by Justice William Brennan who stated that the action of burning down a flag could be considered a form of speech and, therefore, should be protected by the First Amendment (FindLaw, 2018). The First Amendment does not specify the types of free speech that can and cannot be included in the discussion. Nevertheless, the Court’s experience allowed the judges to support their statement, as they have provided numerous cases where freedom of speech was not limited by written or spoken words (Legal Information Institute, 2017).

According to the judges, the freedom of speech should protect not only harmless actions but also those that may be deemed offensive by society as long as they do not encourage an immediate aggressive response (FindLaw, 2018). The attitude of the audience towards this situation cannot justify Johnson’s initial conviction. The Supreme Court also noted that Texas’ law was prohibiting particular types of flag burning discriminatory and limiting one’s freedom of expression. Justice Brennan stated that one could not simply choose which actions are justifiable and which are not based on personal moral viewpoints.

Dissenting Opinions

Justice Stevens presented a dissenting opinion, arguing that the status and the meaning of the flag should exclude flag burning from acceptable actions due to it being a symbol of freedom, tolerance, and goodwill (FindLaw, 2018). He concluded that the flag’s value could not be measured. Thus, Johnson’s conviction was justified in undermining the value of the country’s significant asset. Justices Rehnquist, White, and O’Connor presented similar arguments and justified federal prohibition of flag defamation.

Concurring Opinions

Justice Kennedy presented a concurring opinion and agreed that while Johnson’s action may have been offensive and disrespectful to the country, its national values still offer support and protection for his right to freedom of speech and expression (FindLaw, 2018). Therefore, although the decision may not satisfy some persons, it is just. The system of beliefs maintained by the nation protects all people who are a part of it.


Balter, S. J. (2001). The search for grounds in legal argumentation: A rhetorical analysis of Texas vs Johnson. Argumentation, 15(4), 381-395.

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FindLaw. (2018). Texas v. Johnson. Web.

Legal Information Institute. (2017). First Amendment. Web.

Schubert, L., Dye, T. R., & Zeigler, H. (2015). The irony of democracy: An uncommon introduction to American politics (17th ed.). Boston, MA: Cengage Learning.

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"Texas v. Johnson: Flag Burning and Free Speech." StudyCorgi, 22 Dec. 2020,

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StudyCorgi. 2020. "Texas v. Johnson: Flag Burning and Free Speech." December 22, 2020.


StudyCorgi. (2020) 'Texas v. Johnson: Flag Burning and Free Speech'. 22 December.

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