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Texas v. Johnson (1989)

Can Flag Burning to Send a Political Message Be Made a Crime?


Does the state have the authority to make it a crime to burn an American flag, even as part of a political protest and as a means for expressing a political opinion? Most states have banned flag burning as part of statutes generally outlawing flag desecration. The Supreme Court had to rule on such the Texas law when a man was convicted for burning an American flag at the Republican National Convention.

Texas v. Johnson: Background

During the 1984 Republican convention in Dallas, Texas, Gregory Lee (Joey) Johnson soaked an American flag in kerosene and burned it in front of the convention building while protesting the polices of Ronald Reagan. Other protesters accompanied this by chanting “America; red, white and blue; we spit on you.”

Arrested and convicted under a Texas law against intentionally or knowingly desecrating a state or national flag, Johnson was fined $2000 and sentenced to one year in jail. He appealed to the Supreme Court where Texas argued that it had a right to protect the flag as a symbol of national unity. Johnson argued that his freedom to express himself protected his actions.

Texas v. Johnson: Decision

The Supreme Court ruled 5-4 for Johnson. They rejected the claim that the ban was necessary to protect breaches of the peace due to the offense that burning a flag would cause.

    The State’s position ... 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.”

Texas' claim that they needed to preserve the flag as a symbol of national unity undermined their case by conceding that Johnson was expressing a disfavored idea. Since the law stated that desecration is illegal if “the actor knows it will seriously offend one or more persons,” the court saw that the state’s attempt to preserve the symbol was tied to an attempt to suppress certain messages: “Whether Johnson’s treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct.”

Justice Brennan wrote in the majority opinion:

    If there is a bedrock principle underlying the First Amendment, it is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. [...]

    [F]orbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. ... Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. ...

    The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. ... We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by - as one witness here did - according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.

Supporters of bans on flag burning say they aren’t trying to ban the expression of offensive ideas, just physical acts. This means that desecrating a cross could be outlawed because it only bans physical acts and other means of expressing the relevant ideas can be used. Few, though, would accept this argument.

Burning the flag is like a form of blasphemy or “taking the Lord’s name in vain” — it takes something revered and transforms it into something base, profane, and unworthy of respect. This is why people are so offended when they see a flag being burned; it is also why burning or desecration is protected — just as blasphemy is.

Texas v. Johnson: Significance

Although only narrowly, the Court sided with free speech and free expression over the desire to suppress speech in the pursuit of political interests. This case sparked years of debate over the meaning of the flag, including efforts to amend the Constitution to allow for a prohibition of the “physical desecration” of the flag.

More immediately, the decision inspired Congress to rush through passage of the Flag Protection Act of 1989, a law designed for no other purpose but to ban the physical desecration of the American flag in defiance of this decision.

More: Texas v. Johnson Dissents »

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