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Constitutional Law II · Symbolic speech (flag burning) · Case brief

Texas v. Johnson

491 U.S. 397 · Supreme Court of the United States · 1989
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Facts

During the 1984 Republican National Convention in Dallas, Gregory Lee Johnson participated in a political demonstration protesting Reagan administration policies and certain corporations. At the end of the march, Johnson burned an American flag outside Dallas City Hall while protesters chanted; no one was physically injured, though some witnesses were seriously offended. Texas charged Johnson under a state statute prohibiting desecration of a venerated object, including the flag, if the actor knew it would seriously offend others. Johnson was convicted, but the Texas Court of Criminal Appeals reversed, holding that the statute as applied violated the First Amendment.

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Issue

Does the First Amendment protect flag burning as expressive conduct, making unconstitutional a state law that criminalizes desecration of the American flag when it seriously offends others?

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Rule

The First Amendment protects expressive conduct when there is an intent to convey a particularized message and the likelihood is great that the message will be understood by those who view it. Government may not prohibit expression simply because society finds the idea offensive or disagreeable, and content-based restrictions on symbolic expression are subject to the most exacting scrutiny.

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Holding

Yes. Johnson's flag burning was expressive conduct protected by the First Amendment, and Texas's interest in preserving the flag as a symbol of nationhood and national unity did not justify his conviction. The Texas statute was unconstitutional as applied to Johnson.

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Reasoning

The Court held that Johnson's act was plainly expressive in the context of a political demonstration, satisfying First Amendment protection for symbolic speech. Texas asserted interests in preventing breaches of the peace and preserving the flag's symbolic value, but the record showed no threat of imminent violence, so breach-of-peace concerns failed. The state's remaining interest was directly related to suppressing the communicative impact of Johnson's message, which triggered the most exacting scrutiny and could not justify punishment. The government cannot prohibit expression merely because it is deeply offensive, and punishing Johnson for mistreating the flag because of the message conveyed violated the First Amendment.

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Dissent

Justice Rehnquist, joined by Justices White and O'Connor, argued that the American flag occupies a unique status as a national symbol and that the state could prohibit its physical desecration without suppressing ideas generally. Justice Stevens separately dissented, contending that preserving the flag's special symbolic value justified the restriction.

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Significance

Texas v. Johnson established that flag burning is protected symbolic speech and that the government cannot criminalize desecration of the flag to preserve its symbolic value or to suppress offense at the message. The decision reinforced core First Amendment principles against viewpoint discrimination and led directly to invalidation of the federal Flag Protection Act in United States v. Eichman, 496 U.S. 310 (1990). It also builds on symbolic-speech doctrine reflected in Spence v. Washington, 418 U.S. 405 (1974), and the rule that speech may not be banned simply because it is offensive, as in Cohen v. California, 403 U.S. 15 (1971).

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Citations in this brief — every case checked
United States v. Eichman, 496 U.S. 310 (1990)
Abstain
Spence v. Washington, 418 U.S. 405 (1974)
Abstain
Cohen v. California, 403 U.S. 15 (1971)
Abstain

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