Texas v. Johnson: The Value of a Burned Flag


            A United States flag covered in kerosene, was set on fire in front in of the National Republican Convention in Dallas, Texas on August of 1984.  Gregory Lee Johnson marched through the streets of Dallas, Texas along with other protesters till they reached the Dallas City Hall where Johnson than lit the flag ablaze as a protest against President Ronald Reagan’s Policies.  Protesters Johnson was than arrested for violating a state law of Texas which prohibits the desecration of the U.S. flag.  After his conviction and being sentenced to a year in jail, it was soon overturned and accepted by the U.S. Supreme Court to decide if the act resides under the first amendment.  The case is to be further reviewed in March of 1989.

“After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law.  This case presents the question whether his convictions is consistent with the First Amendment.  We hold that is not.” Stated by Justice Brennan, who conveyed the opinion of the court.

Texas police arrested Johnson during his protest and charged him with desecration of a venerated object.  Fined for $2,000 and incarcerated to one year in prison, Johnson’s conviction was overturned by the Texas Court of Criminal Appeals because the state could not punish him for burning the flag.  The two concerns that arose from this case were preserving the flag as a symbol of national unity and preventing a break in peace.  These concerns however, could not support the conviction of Johnson.

With a declaration by Brennan, “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.  At his trail, Johnson explained his reason for burning the flag as follows:  The American was burned as Ronald Reagan was being renominated as President.  And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time.  It’s quite a just position [juxtaposition].  We had new patriotism and no patriotism.”  This conveys that Johnson was burning the flag as a political demonstration, but was this demonstration disturbing the peace?

There was no disturbance of peace through Johnson’s action even though the State buckled down on Johnson and the protestors for their behavior in the streets.  The only possible disturbance of the peace was after the burning of the flag but this was a reaction, not a disturbance.  Thus, after concluding that there was no break in peace, the state of Texas claims the importance of the saving the flag.

The state declared that the flag needs to be saved as a symbol for not only the nation, but for national unity.  Through these words, the state stands by their conviction of Johnson seeing that the flag stands as a symbol.  But, these means that Johnson was prosecuted for the expression of an idea and therefore a type of speech that falls under the first amendment.  A clear, summarized statement by Bennan “In short, nothing in our precedents suggest that a state my foster its own view of the flag by prohibiting expressive conduct relating to it.  To bring argument outside our precedents, Texas attempts to convince us that, even if its interest in preserving the flag’s symbolic role does not allot it to prohibit words or some expressive conduct critical of the flag, it does permit it to forbid the outright destruction of the flag.”

The argument that stands in the basis of the U.S. flag and how the flag is and can be expressed.  Whether it be nationhood or national unity, the permissibility is the deciding factor.  Brennan than ends the dispute, quoting “We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires.  To paraphrase Justice Holmes, we submit that nobody can suppose that this is one gesture of an unknown man will change our Nation’s attitude towards its flag.  Indeed, Texas’ argument that the burning of an American flag “’is an act having a high likelihood to cause a breach of the peace,’” …and its statute’s implicit assumption that physical mistreatment of the flag will lead to “serious offense,” tend to confirm that the flag’s special role is not in danger; if it were, no one would riot or take offense because a flag had been burned.”  This concluding statement regarding Texas’ symbol of the flag resulted in a follow up statement by Brennan which read, “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 judgement of the Texas Court of Criminal Appeals is therefore Affirmed.”  Impressions proceeded after this explanation, with in-depth details about the prosecutor’s argument.

Johnson argued that the he was convicted for his words not his actions.  That he was not convicted for the burning of the flag but for the statement he made during the burning.  This argument was subsided due it being unlikely that the he was convicted based on the idea that is was his words alone.

The First Amendment was violated during Johnson’s conviction of Texas’ flag desecration.  “Section 42.09 regulates only physical conduct with respect to the flag, not the written or spoken word, and although one violates the statue only if one “knows that one’s physical treatment of the flag “will seriously offend one or more persons likely to observe or discover his action,” …this fact does not necessarily mean that the statue applies only to expressive conduct protected by the First Amendment.” Described by Bennan, it explains that Johnson’s political expression conviction, violates the First Amendment.  And although there is tension between Johnson and the state of Texas, the State cannot suppress expression which was pointed out by Johnson for his act of burning the flag.

A concern brought up by Texas, directs its notion that onlookers should be protected from being offended by the expression of the activity that is prohibited in the state of Texas.  The state provided testimonies of people who had been seriously offended by the actions of Johnson, however, the audience’s reaction is too precious for it to be of any constitutional significance.

No evidence was found that Johnson stole the flag that he burned in front of the National Republican Convention.

The Concurrence was delivered by Justice Kennedy who begins “I write not to qualify the words of JUSTICE BRENNAN chooses so well, for he says with power all that is necessary to explain our ruling.  I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll.  This prompts me to add to our pages these remarks.”  Kennedy continues to describe that “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.”  Kennedy’s Concurrence drives on the fact that the Justices are here to do their job, no matter how difficult the decision is.  And in this case, no matter how offensive Johnson’s acts were, they were still a figure of speech, and that he is free to go.

Two Dissent’s followed the decision, Chief Justice Rehnquist who had Justice White and Justice O’Connor join, and Justice Stevens.

Rehnquist’s Dissent gives a background and history of the flag from when it had 13 stars to the Vietnam war, which also included flag burnings.  Rehnquist’s uses history to embody the symbol of the flag and its meaning to the nation.  “The flag symbolizes the Nation in peace as well as in war.  It signifies our national presence on battleships, airplanes, military installations, and public buildings from the United States Capitol to the thousands of county courthouses and city halls throughout the country… Countless flags are placed by the graves of loved ones each year on what was first called Decoration Day, and is now called Memorial Day.”  Rehnquist continues with his dissents making points along the way of how the flag represents the U.S. and that Johnson’s actions were obviously not to express an idea but to anger an audience.  The points were then followed up by the next dissent.

Justice Stevens brought up the concern of the power the government has over the desecration of the American flag.  The symbol of the flag is again reinforced, describing its value and the role is plays in the U.S.  Stevens relays the message “The value of the flag as a symbol cannot be measured…Conceivably, that value will be enhanced by the Court’s conclusion that our national commitment to free expression is so strong that even the United States, as ultimate guarantor of that freedom, is without power to prohibit the desecration of its unique symbol.” Steven’s message leads into his last quote of his dissent that drives the point home,” The ideas of liberty and equality have been irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach.  If those ideas are worth fighting for – and our history demonstrates that they are – it cannot be true that the flag that uniquely symbolizes their power it not itself worthy of protection from unnecessary desecration.  I respectfully dissent.”

To conclude, Johnson was first convicted of burning the flag by the state of Texas but the conviction was then reversed and Johnson was set free in a 5-4 vote. Rehnquist and Stevens dissented the decision by embodying the history and value of the flag’s symbolism.  Even though Johnson’s action can be taken as offensive to the public, it is still a figure of speech, which resides under the First Amendment.

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