Texas v. Johnson (1989): When Flag Burning Became Free Speech
Updated: Jun 30
In the landmark 1989 case Texas v. Johnson, the U.S. Supreme Court issued a bold and controversial ruling that redefined the limits—and the protections—of the First Amendment. By a narrow 5–4 majority, the Court held that burning the American flag, even in protest, constitutes a form of symbolic speech protected by the Constitution. The decision stirred public outcry, ignited fierce political debate, and reaffirmed one of the most enduring principles in American democracy: the government cannot silence expression merely because it is offensive or unpopular.
The Background: Protest and Arrest
The case arose from a political demonstration during the 1984 Republican National Convention in Dallas, Texas. Gregory Lee Johnson, a member of a revolutionary Marxist group, participated in a protest against the policies of President Ronald Reagan. As part of the demonstration, Johnson doused an American flag in kerosene and set it on fire outside Dallas City Hall while chanting slogans such as “America, the red, white, and blue, we spit on you.”
The act shocked many onlookers. No one was physically harmed, but several witnesses reported feeling deeply offended. Johnson was arrested and charged under a Texas law that prohibited the desecration of a “venerated object,” including the American flag, if the act was likely to incite anger or offend others.
He was convicted, fined $2,000, and sentenced to a year in prison. Johnson appealed his conviction, and the Texas Court of Criminal Appeals overturned it, holding that the First Amendment protected his conduct. The State of Texas then appealed to the U.S. Supreme Court.
The Legal Question
The central legal issue was straightforward but politically explosive: Does the First Amendment protect nonverbal acts of protest—like flag burning—that convey a specific political message, even when those acts are deeply offensive to many Americans?
The Texas argument rested on the notion that the state had an interest in preserving the flag as a symbol of national unity and preventing breaches of the peace. Johnson’s attorneys countered that his actions, while provocative, constituted symbolic expression—political speech—that lay at the heart of First Amendment protections.
The Ruling: A Divided Court Speaks
On June 21, 1989, the Supreme Court delivered its decision in Texas v. Johnson, ruling in Johnson’s favor by a 5–4 margin. Justice William J. Brennan authored the majority opinion, joined by Justices Marshall, Blackmun, Scalia, and Kennedy.
The Court held that Johnson’s act of flag burning was “expressive conduct” that clearly communicated a political message. As such, it qualified as speech under the First Amendment. The majority rejected the argument that the government’s interest in preserving the flag’s symbolic value outweighed Johnson’s rights.
In Brennan’s words:
“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 offensive or disagreeable.”
The decision emphasized that free speech is most vital when it protects unpopular or controversial expression. The justices warned against the government becoming an arbiter of acceptable opinion or patriotism.
Dissenting Voices: Respect for Symbols
The dissenting justices—Chief Justice Rehnquist and Justices White, O’Connor, and Stevens—argued that the flag deserved an exceptional level of legal protection due to its role as a national symbol. In his dissent, Rehnquist wrote:
“The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition… It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.”
The dissenters expressed concern that the decision would erode the unifying symbols of the American experience and invite chaos under the guise of free expression.
Aftermath: Public Outcry and Legislative Response
The ruling proved to be one of the most controversial First Amendment decisions in modern history. Many Americans, including veterans' groups and members of Congress, reacted with outrage. Public opinion polls showed that a majority of citizens opposed the decision.
Congress responded swiftly, passing the Flag Protection Act of 1989, which attempted to criminalize flag desecration at the federal level. However, that law was quickly struck down the following year in United States v. Eichman (1990), in which the Court reaffirmed its Johnson ruling.
Over the next decades, multiple attempts were made in Congress to pass a constitutional amendment banning flag desecration, but none garnered the necessary two-thirds majority in both chambers.
Lasting Impact: A Litmus Test for Free Speech
Texas v. Johnson remains a touchstone case in the ongoing debate over the limits of free speech. It is frequently cited in First Amendment jurisprudence and has been used to defend other forms of symbolic or protest-based expression, from kneeling during the national anthem to controversial art exhibits.
The case stands as a potent reminder that protecting freedom of speech requires tolerating speech that is uncomfortable, offensive, or even infuriating to many. As Justice Kennedy, who provided the crucial swing vote, wrote in a concurring opinion:
“It is poignant but fundamental that the flag protects those who hold it in contempt.”
Texas v. Johnson reaffirmed a defining feature of American democracy: the right to dissent. By protecting the right to burn the flag, the Court underscored a paradox at the heart of the First Amendment: that true patriotism does not require enforced conformity, but rather, a shared commitment to the freedom to speak, protest, and challenge authority, even in the most provocative ways.
Disclaimer: The articles in the #ForTheWriters Case Law Series are intended for educational and informational purposes only. They are designed to provide general insight into landmark legal cases and their impact on free speech, civil rights, and public discourse. Nothing in these articles should be construed as legal advice. Additionally, the views and interpretations presented do not necessarily reflect the personal opinions or positions of For The Writers or its affiliated entities.
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