Texas v Johnson
Texas v. Johnson (1989)
Background / Facts
Gregory Lee Johnson participated in a political demonstration during the 1984 Republican National Convention protesting Reagan administration policies and certain corporations.
At the end of the demonstration, Johnson poured kerosene on an American flag and burned it while protesters chanted political slogans. No one was physically injured or threatened, although some witnesses were seriously offended.
Johnson was convicted under a Texas law prohibiting desecration of a venerated object and sentenced to one year in prison plus a $2,000 fine. The Texas Court of Criminal Appeals reversed, finding the conviction unconstitutional.
Constitutional Issue
Whether burning the American flag as part of a political protest constituted expressive conduct protected by the First Amendment.
Whether Texas's interests in preventing breaches of the peace and preserving the flag as a symbol of national unity justified punishing Johnson.
Whether Texas's law improperly restricted expression because of the message communicated by Johnson's conduct.
Rule / Legal Test / Doctrine
Conduct can receive First Amendment protection when it is sufficiently communicative: there must be an intent to convey a particularized message and a strong likelihood that observers would understand it.
When expressive conduct is regulated, O'Brien's less demanding standard applies only when the government's interest is unrelated to suppressing free expression.
The government may not prohibit expression simply because the idea is offensive or disagreeable. A restriction based on the communicative content of expression receives more demanding scrutiny.
Holding
The Supreme Court affirmed the reversal of Johnson's conviction.
Johnson's flag burning was expressive conduct protected by the First Amendment because it was part of an intentional political demonstration and its message was apparent.
Texas's asserted interests did not justify the conviction: preventing a breach of peace was not implicated, and preserving the flag's symbolic meaning was related to suppressing expression.
Court's Reasoning
Expressive conduct: The context made Johnson's political message clear. The flag burning occurred as the culmination of a political demonstration, so it was sufficiently imbued with elements of communication.
No breach-of-peace justification: No disturbance occurred or was threatened. The fact that people were seriously offended did not establish that violence or a breach of the peace was likely.
Not fighting words: Johnson's conduct was not a direct personal insult or invitation to fight, so it did not fall within the narrow category of fighting words.
Content-based restriction: Texas wanted to preserve the flag as a symbol of nationhood and national unity, but that concern arose specifically because of the message communicated by Johnson's treatment of the flag. Therefore, the interest was related to suppression of expression and fell outside O'Brien's test.
Significance
Establishes that flag burning can constitute protected expressive conduct under the First Amendment.
Shows that the government cannot prohibit expression merely because it is offensive or because people strongly disagree with its message.
Clarifies the relationship between Texas v. Johnson and O'Brien: O'Brien applies to expressive conduct when the government's interest is unrelated to suppressing expression; when the government's interest is tied to the message, O'Brien does not apply.
Connects expressive-conduct doctrine to Brandenburg, emphasizing that the government cannot simply presume provocative expression will cause violence; it must consider whether expression is directed toward and likely to produce imminent lawless action.
Key Terms
Expressive conduct
Symbolic speech
Content-based restriction
O'Brien test
First Amendment
Freedom of expression
Fighting words
Breaches of the peace
Quiz-Ready Takeaway
Texas v. Johnson = flag burning as political protest is protected expressive conduct. Because Texas's interest in preserving the flag's symbolic meaning was tied to the message Johnson communicated, O'Brien's more lenient test did not apply; and because there was no actual or likely breach of the peace, Texas could not constitutionally punish him.