Texas v. Johnson

RESPONDENT: Gregory Lee Johnson
LOCATION: Dallas City Hall

DOCKET NO.: 88-155
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 491 US 397 (1989)
ARGUED: Mar 21, 1989
DECIDED: Jun 21, 1989

Kathi Alyce Drew - Argued the cause for the petitioner
William M. Kunstler - Argued the cause for the respondent

Facts of the case

In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.


Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

Media for Texas v. Johnson

Audio Transcription for Oral Argument - March 21, 1989 in Texas v. Johnson

William H. Rehnquist:

We'll hear argument next in No. 88-155, Texas v. Gregory Lee Johnson.

Ms. Drew, you may proceed whenever you're ready.

Kathi Alyce Drew:

Thank you. Mr. Chief Justice, and may it please the Court:

The issue before this Court is whether the public burning of an American flag which occurred as part of a demonstration with political overtones is entitled to First Amendment protection.

The flag burning in this case occurred during the 1984 Republican National Convention in Dallas, Texas.

The flag was burned in front of Dallas City Hall at the culmination of a demonstration march through downtown Dallas in the midst of a crowd of demonstrators and onlookers.

The flag burner, who was identified as Mr. Johnson, was convicted under a Texas statute which prohibits desecration of the national flag.

His punishment was assessed at one year in the county jail plus a $2,000 fine.

The conviction was affirmed on direct appeal by the Intermediate Court of Appeals.

Mr. Johnson then filed petition for discretionary review to the Texas Court of Criminal Appeals.

That is the highest court in the state of Texas which hears criminal cases.

The court granted his petition, reversed his conviction, and ordered the information dismissed.

The Court of Criminal Appeals held that the Texas statute was unconstitutional as applied to Mr. Johnson, since he was a political protester.

Judge Campbell of that court found that flag burning constituted symbolic speech within the test enunciated by this court in Spence versus Washington.

That court also found that Texas' asserted interests in regulating the act of flag burning were insufficient to outweigh a protestor's First Amendment rights to expression.

For purposes of this argument today and with the Court's indulgence, the state will assume the symbolic speech standard and proceed directly to the question of Texas' compelling interest in regulating this type of conduct.

Throughout the course of the appellate history in this case Texas has advanced two compelling state interests.

One is the preservation of the flag as a symbol of nationhood and national unity.

The second is the preservation of a breach of the peace.

William H. Rehnquist:

Prevention of breach of the peace?

Kathi Alyce Drew:

Yes, Your Honor, prevention as opposed to punishment for a breach of the peace.

I would like to address first the nationhood interest.

We believe that preservation of the flag as a symbol of nationhood and national unity is a compelling and valid state interest.

We feel very certain that Congress has the power to both adopt a national symbol and to take steps to prevent the destruction of that symbol, to protect the symbol.

Antonin Scalia:

Now, why does... why does the... why did the defendant's actions here destroy the symbol?

His actions would have been useless unless the flag was a very good symbol for what he intended to show contempt for.

His action does not make it any less a symbol.

Kathi Alyce Drew:

Your Honor, we believe that if a symbol over a period of time is ignored or abused that it can, in fact, lose its symbolic effect.

Antonin Scalia:

I think not at all.

I think... I think when somebody does that to the flag, the flag becomes even more a symbol of the country.