Texas v. Johnson

What is symbolic speech? Is it literally mentioned in the First Amendment? Should it be entitled to the same protection as other kinds of speech? What was the O’Brien test, and how did Justice Brennan apply it in Texas v. Johnson? What was Texas’ interests in punishing flag desecration? Explain how Justice Brennan made use of the preferred freedom test in this case. Do you agree with Justice Brennan’s statement: “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”? How compelling are the dissents of Justices Rehnquist and Stevens? Why did Rehnquist invoke poetry?
How did the Court use the precedents of Brandenburg and Chaplinsky in this case? Compare and contrast the Court’s opinion on flag burning in Texas with cross burning in Virginia v. Black.

Gregory Lee Johnson was the leader of an American Maoist group that protested at the 1984 Republican National Convention in Dallas, Texas, where Ronald Reagan was seeking renomination for president. During the demonstration, someone took down an American flag from a nearby building and handed it to Johnson. At the end of a march, he unfurled the flag, poured kerosene on it, and burned it while the protestors hollered, “America, the red, white, and blue, we spit on you.” Johnson was arrested and fined under a Texas state law that punished flag desecration. The law advanced two interests: to protect the flag as a symbol of nationhood, and to prevent a breach of peace. The case made its way to the Texas Court of Appeals, the highest state court, which ultimately ruled in favor of Johnson. Texas then appealed the decision to the Supreme Court.

In a 5–4 decision, written by Justice William J. Brennan (1906–1997), the Court extended the concept of symbolic speech to cover flag burning as an offensive yet protected expression of dissent. Justice Brennan first distinguished the important symbolic speech precedent of United States v. O’Brien (1968), which refused to extend First Amendment protection to the burning of a draft card, from Johnson’s burning of the flag. Whereas the federal law that prohibited the burning of a draft card was meant to ensure the smooth functioning of armed forces recruitment, Texas’ interest in protecting the flag as a symbol of national unity was related to “the suppression of speech,” and as a result would be subjected to “the most exacting scrutiny.” Texas v. Johnson is further noteworthy as a clear example of the Court’s “preferred freedoms” standard. Justice Rehnquist’s dissent invoked poetry to affirm the patriotic memories and feelings stirred by the flag and the need to honor it as a revered symbol of national unity and public sacrifice. His dissent also contained a poignant reflection about the proper role of the Court in the American constitutional system.

Congress responded to Texas v. Johnson by enacting the Flag Protection Act of 1989. However, relying upon the same reasoning used in Texas v. Johnson, the Supreme Court struck it down in United States v. Eichman (1990).

—Joseph R. Fornieri

Source: 491 U.S. 397, https://www.law.cornell.edu/supremecourt/text/491/397.

JUSTICE BRENNAN delivered the opinion of the Court. . . .

. . . 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. If his conduct was expressive, we next decide whether the state’s regulation is related to the suppression of free expression. See, e.g., United States v. O’Brien (1968). If the state’s regulation is not related to expression, then the less stringent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls.[1] If it is, then we are outside of O’Brien’s test, and we must ask whether this interest justifies Johnson’s conviction under a more demanding standard. A third possibility is that the state’s asserted interest is simply not implicated on these facts, and, in that event, the interest drops out of the picture.

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. While we have rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ ” . . . we have acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments” (United States v. O’Brien, 1968; Spence v. Washington, 1974). . . .

Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. Attaching a peace sign to the flag (Spence v. Washington, 1974); refusing to salute the flag (Barnette v. West Virginia, 1943); and displaying a red flag (Stromberg v. California, 1931), we have held, all may find shelter under the First Amendment. See also Smith v. Goguen (1974) (treating flag “contemptuously” by wearing pants with small flag sewn into their seat is expressive conduct). That we have had little difficulty identifying an expressive element in conduct relating to flags should not be surprising. 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” (Smith v. Goguen, 1974). . . .

The state of Texas conceded for purposes of its oral argument in this case that Johnson’s conduct was expressive conduct. . . . 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” to implicate the First Amendment. . . .

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. 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. We hold that the first interest is not implicated on this record, and that the second is related to the suppression of expression.

Texas claims that its interest in preventing breaches of the peace justifies Johnson’s conviction for flag desecration. However, no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag. Although the state stresses the disruptive behavior of the protestors during their march toward City Hall, it admits that “no actual breach of the peace occurred at the time of the flag burning or in response to the flag burning.” . . . 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, 1949). . . .

Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 1969).[2] 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. 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).[3] No reasonable onlooker would have regard