Texas v. Johnson

Notable Items:

The Flag Protection Act of 1989 was declared unconstitutional in United States v. Eichman (1990) .

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration dubbed the "Republican War Chest Tour."
• He [Johnson] did, however, accept an American flag handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings.
• The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire.
• After the demonstrators dispersed, a witness to the flag burning collected the flag's remains and buried them in his backyard.
• No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning.
• The only criminal offense with which he was charged was the desecration of a venerated object in violation of Tex.Penal Code Ann. § 42.09(a)(3) (1989).

Procedural History:

• The only criminal offense with which he was charged was the desecration of a venerated object in violation of Tex.Penal Code Ann. § 42.09(a)(3) (1989).
• After a trial, he was convicted, sentenced to one year in prison, and fined $2,000.
• The Court of Appeals for the Fifth District of Texas at Dallas affirmed Johnson's conviction, 706 S.W.2d 120 (1986),
• but the Texas Court of Criminal Appeals reversed, 755 S.W.2d 92 (1988), holding that the State could not, consistent with the First Amendment, punish Johnson for burning the flag in these circumstances.
• To justify Johnson's conviction for engaging in symbolic speech, the State asserted two interests: preserving the flag as a symbol of national unity and preventing breaches of the peace.
• The Court of Criminal Appeals held that neither interest supported his conviction.
• We granted certiorari, 488 U.S. 907 (1988), and now affirm.

Rationale

Brennan Majority Opinion (Marshall, Blackmun, Scalia, Kennedy)

• Johnson burned an American flag as part -- indeed, as the culmination -- of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President.
• The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent.
• The State offers two separate interests to justify this conviction: preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity. [emphasis added]
• We hold that the first interest is not implicated on this record, and that the second is related to the suppression of expression. [emphasis added]
• To accept Texas' arguments that it need only demonstrate "the potential for a breach of the peace," and that every flag burning necessarily possesses that potential, would be to eviscerate our holding in Brandenburg v. Ohio, 395 U. S. 444, 395 U. S. 447 (1969). This we decline to do.
• 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. See, [list of thirteen Supreme Court decisions].
• The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the marketplace of ideas. See Brandenburg v. Ohio, 395 U. S. 444 (1969). We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.
• A full description of the rationale is available below

Kennedy Concurrance

• I write not to qualify the words Brennan chooses so well, for he says with power all that is necessary to explain our ruling.
• The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.
• With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce.
• But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free.

Rehnquist Dissent (White, O'Connor)

• For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here.
• [paean to the flag at various events in American history...some correct, some inaccurate. Eight pages.]
• But the Court insists that the Texas statute prohibiting the public burning of the American flag infringes on respondent Johnson's freedom of expression.
• Such freedom, of course, is not absolute. See Schenck v. United States, 249 U. S. 47 (1919).
• But his act, like Chaplinsky's provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. [Not only does this assertion sit uneasily next to the dissent's quite correct reminder that the flag occupies a unique position in our society -- which demonstrates that messages conveyed without use of the flag are not "just as forcefu[l]" as those conveyed with it -- but it also ignores the fact that, in Spence, supra, we "rejected summarily" this very claim. Footnote 11 of majority opinion]
• The highest courts of several States have upheld state statutes prohibiting the public burning of the flag on the grounds that it is so inherently inflammatory that it may cause a breach of public order.
• Far from being a case of "one picture being worth a thousand words," flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.
• It was Johnson's use of this particular symbol, and not the idea that he sought to convey by it or by his many other expressions, for which he was punished.
• [States claim that Warren, Fortas, and Black would not have voted with the majority.]
• The Court concludes its opinion with a regrettably patronizing civics lecture, ....
• The Court's role as the final expositor of the Constitution is well established, but its role as a platonic guardian admonishing those responsible to public opinion as if they were truant schoolchildren has no similar place in our system of government.
• Uncritical extension of constitutional protection to the burning of the flag risks the frustration of the very purpose for which organized governments are instituted. [We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, ....]
• I would uphold the Texas statute as applied in this case.

Stevens Dissent

• Even if flagburning could be considered just another species of symbolic speech under the logical application of the rules that the Court has developed in its interpretation of the First Amendment in other contexts, this case has an intangible dimension that makes those rules inapplicable.
• The value of the flag as a symbol cannot be measured. Even so, I have no doubt that the interest in preserving that value for the future is both significant and legitimate.
• The statutory prohibition of flag desecration does not "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 642 (1943). The statute does not compel any conduct or any profession of respect for any idea or any symbol.
• Nor does the statute violate "the government's paramount obligation of neutrality in its regulation of protected communication." Young v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 70 (1976) (plurality opinion).
• The case has nothing to do with "disagreeable ideas," see ante at 491 U. S. 409. It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset.
• Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies.

Brennan Majority Full Argument (Marshall, Blackmun, Scalia, Kennedy)

• Part I See Material Facts and Procedural History
• Noting that the State had not shown that the flag was in "grave and immediate danger," Barnette, supra, at 639, of being stripped of its symbolic value, the Texas court also decided that the flag's special status was not endangered by Johnson's conduct. 755 S.W.2d at 97.
• As to the State's goal of preventing breaches of the peace, the court concluded that the flag desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace.
• One cannot equate 'serious offense' with incitement to breach the peace." Id. at 96.
• Citing Boos v. Barry (1988) , 485 U. S. 312 (1988), the court decided that § 42.01 demonstrated Texas' ability to prevent disturbances of the peace without punishing this flag desecration. 755 S.W.2d at 96.
• Because it reversed Johnson's conviction on the ground that § 42.09 was unconstitutional as applied to him, the state court did not address Johnson's argument that the statute was, on its face, unconstitutionally vague and overbroad.
• We granted certiorari, 488 U.S. 907 (1988), and now affirm.
• Part II -- Expressive Conduct?
• We must first determine whether Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction. See, e.g., Spence v. Washington, 418 U. S. 405, 418 U. S. 409-411 (1974). [followed by next questions/steps for both yes and no answers to each with precedent citations.]
• Johnson has raised a facial challenge to Texas' flag desecration statute, we choose to resolve this case on the basis of his claim that the statute, as applied to him, violates the First Amendment.
• The First Amendment literally forbids the abridgment only of "speech," but we have long recognized that its protection does not end at the spoken or written word.
• The very purpose of a national flag is to serve as a symbol of our country; it is, one might say, "the one visible manifestation of two hundred years of nationhood." Id. at 415 U. S. 603 (Rehnquist, dissenting).
• We have not automatically concluded, however, that any action taken with respect to our flag is expressive.
• Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred.
• Johnson burned an American flag as part -- indeed, as the culmination -- of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President.
• The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent.
• In these circumstances, Johnson's burning of the flag was conduct "sufficiently imbued with elements of communication," Spence, 418 U.S. at 418 U. S. 409, to implicate the First Amendment.
• Part III -- Regarding the State's Claims.
• The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. See O'Brien, 391 U.S. at 391 U. S. 376-377; Clark v. Community for Creative Non-Violence, 468 U. S. 288, 468 U. S. 293 (1984); Dallas v. Stanglin, 490 U. S. 19, 490 U. S. 25 (1989).
• It may not, however, proscribe particular conduct because it has expressive elements.
• In order to decide whether O'Brien's test applies here, therefore, we must decide whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression.
• If we find that an interest asserted by the State is simply not implicated on the facts before us, we need not ask whether O'Brien's test applies. See Spence, supra, at 418 U. S. 414, n. 8.
• The State offers two separate interests to justify this conviction: preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity. [emphasis added]
• We hold that the first interest is not implicated on this record, and that the second is related to the suppression of expression. [emphasis added]
• Part III A -- Rejecting "Preserving the Peace" and Applicabilty of O'Brien.
• The only evidence offered by the State at trial to show the reaction to Johnson's actions was the testimony of several persons who had been seriously offended by the flag burning.
• The State's position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace, and that the expression may be prohibited on this basis.
• Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal "function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4 (1949). See also Cox v. Louisiana, 379 U. S. 536, 379 U. S. 551 (1965); Tinker v. Des Moines Independent Community School District (1969) , 393 U.S. at 393 U. S. 508-509; Coates v. Cincinnati, 402 U. S. 611, 402 U. S. 615 (1971); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 485 U. S. 55-56 (1988).
• To accept Texas' arguments that it need only demonstrate "the potential for a breach of the peace," and that every flag burning necessarily possesses that potential, would be to eviscerate our holding in Brandenburg v. Ohio, 395 U. S. 444, 395 U. S. 447 (1969). This we decline to do.
• Nor does Johnson's expressive conduct fall within that small class of "fighting words" that are "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New Hampshire (1942) , 315 U. S. 568, 315 U. S. 574 (1942).
• We thus conclude that the State's interest in maintaining order is not implicated on these facts.
• Part II B -- O'Brien Inapplicable.
• The State also asserts an interest in preserving the flag as a symbol of nationhood and national unity.
• The State, apparently, is concerned that such conduct will lead people to believe either that the flag does not stand for nationhood and national unity, but instead reflects other, less positive concepts, or that the concepts reflected in the flag do not in fact exist, that is, that we do not enjoy unity as a Nation.
• These concerns blossom only when a person's treatment of the flag communicates some message, and thus are related "to the suppression of free expression" within the meaning of O'Brien. We are thus outside of O'Brien's test altogether.
• Part IV --
• It remains to consider whether the State's interest in preserving the flag as a symbol of nationhood and national unity justifies Johnson's conviction.
• ... Johnson was prosecuted because he knew that his politically charged expression would cause "serious offense."
• If he had burned the flag as a means of disposing of it because it was dirty or torn, he would not have been convicted of flag desecration under this Texas law: federal law designates burning as the preferred means of disposing of a flag "when it is in such condition that it is no longer a fitting emblem for display," 36 U.S.C. § 176(k), and Texas has no quarrel with this means of disposal.
• According to the principles announced in Boos v. Barry (1988) , Johnson's political expression was restricted because of the content of the message he conveyed. We must therefore subject the State's asserted interest in preserving the special symbolic character of the flag to "the most exacting scrutiny." Boos v. Barry (1988) , 485 U.S. at 485 U. S. 321.
• According to Texas, if one physically treats the flag in a way that would tend to cast doubt on either the idea that nationhood and national unity are the flag's referents or that national unity actually exists, the message conveyed thereby is a harmful one, and therefore may be prohibited.
• 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. See, [list of thirteen Supreme Court decisions].
• Texas' focus on the precise nature of Johnson's expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea.
• The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the marketplace of ideas. See Brandenburg v. Ohio, 395 U. S. 444 (1969). We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.
• It is not the State's ends, but its means, to which we object.
• To say that the government has an interest in encouraging proper treatment of the flag, however, is not to say that it may criminally punish a person for burning a flag as a means of political protest.
• Part V -- Conclusion
• Johnson was convicted for engaging in expressive conduct.
• The State's interest in preventing breaches of the peace does not support his conviction, because Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression. The judgment of the Texas Court of Criminal Appeals is therefore Affirmed.
• The core of the rationale is available above