Texas v. Johnson: 1989

Appellant: State of Texas
Defendant: Gregory Lee Johnson
Appellant Claim: That the Texas statute against "desecration of venerated objects," in this instance burning an American flag, did not violate Gregory Lee Johnson's constitutional rights
Chief Defense Lawyer: William M. Kunstler
Chief Lawyer for Appellant: Kathi Alyce Drew
Justices: Harry A. Blackmun, William J. Brennan, Jr., Anthony M. Kennedy, Thurgood Marshall, Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, John Paul Stevens, and Byron R. White
Place: Washington, D.C.
Date of Decision: June 21, 1989
Decision: Texas statute declared unconstitutional

SIGNIFICANCE: No matter how unpopular it is to burn an American flag, the First Amendment protects that act and other forms of political expression.

Gregory Lee Johnson, nicknamed "Joey," was a fervent supporter of an American communist movement known as the Revolutionary Communist Youth Brigade. When the Republican National Convention met in Dallas, Texas in 1984, Johnson decided to participate in a political demonstration called the "Republican War Chest Tour." The demonstration's purpose was to protest the policies of the Reagan Administration.

On August 22, 1984, Johnson, amidst a crowd of approximately 100 other demonstrators, unfurled an American flag. He splashed it with kerosene and set it on fire, while the other demonstrators chanted. "America, the red, white, and blue, we spit on you." After the flag burned, the demonstrators left, and one of the many shocked onlookers gathered the burnt remains for burial in his backyard. No one was hurt, and no property other than the flag was destroyed. Both the press and the police were at the scene of the flag burning, and when police reinforcements arrived shortly thereafter they arrested Johnson.

Johnson was prosecuted under a Texas law that made it illegal to "intentionally or knowingly desecrate … a state or national flag." Johnson was convicted in Dallas County Criminal Court No. 8 of desecration of a venerated object and sentenced to a year in prison and a $2,000 fine. The prosecutor blatantly asked the jury to convict Johnson for the political symbolism expressed by the flag-burning incident:

And you know that he's also creating a lot of danger for a lot of people by what he does and the way he thinks.

The Court of Appeals of Dallas, Texas, affirmed Johnson's conviction on January 23, 1986. On April 20, 1988, the Texas Court of Criminal Appeals reversed the court of appeals and the trial court, and threw out Johnson's conviction. The court of criminal appeals rejected the state's argument that the antiflag-burning statute was a valid measure to preserve a symbol of national unity:

Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens.

The state of Texas appealed to the U.S. Supreme Court. Johnson's attorney was William M. Kunstler, and the state's attorney was Kathi Alyce Drew. The parties argued their case before the Supreme Court on March 21, 1989.

Justice William J. Brennan authored the decision for the majority of the court, which was issued on June 21, 1989. By a 6-3 vote the justices upheld the Texas Court of Criminal Appeals decision, stating that:

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.

The Supreme Court's decision sparked a vigorous but brief political uproar, culminating in President George Bush proposing an antiflag-burning Constitutional amendment, which quietly died. The lasting legacy of the Johnson case was to demonstrate that the First Amendment's protection of forms of political expression, extends even to those as unpopular and provocative as burning the national flag.

—Stephen G. Christianson

Suggestions for Further Reading

"The Flag Again." The Progressive (February 1989): 8.

Goldstein, Robert Justin. Flag Burning and Free Speech: the Case of Texas v. Johnson. University of Kansas Press, 2000.

Grogan, David. "'Unimpressed by the Freedom to Burn Old Glory Joey Johnson Still Wants a Revolution." People (July 10, 1989): 98-100.

Jacoby, Tamar. "A Fight for Old Glory." Newsweek (July 3, 1989): 18-20.

Simpson, Glenn. "Decision Unravels Flag's Very Fabric." Insight (July 24, 1989): 8-13.

"Waiving the Flag." The New, Republic (January 23, 1989): 7-8.