Texas v. Johnson (1989): Flag Burning and the First Amendment

Case at a Glance

Is It Illegal to Burn an American Flag?

Is it illegal to burn the American flag? No. Burning the American flag as a form of political protest is protected symbolic speech under the First Amendment. Texas v. Johnson (1989) and United States v. Eichman (1990) established this protection. No state or federal law can make flag burning a crime as a means of suppressing political expression.

That said, flag burning can be subject to local fire ordinances, environmental regulations, or public safety rules that apply equally to all burning — as long as those rules target the fire risk, not the political message. What the government cannot do is single out flag burning specifically because of the political expression it conveys.

The Background: Dallas, 1984

On August 22, 1984, during the Republican National Convention held in Dallas, Texas, approximately 100 protesters gathered to demonstrate against the policies of President Ronald Reagan. The group, which included Gregory Lee Johnson, a 25-year-old member of the Revolutionary Communist Youth Brigade, marched through downtown Dallas, stopping at several corporate headquarters before arriving at Dallas City Hall.

Outside City Hall, Johnson poured kerosene on an American flag and set it on fire while other demonstrators chanted America, the red, white, and blue, we spit on you. Several onlookers were deeply offended by the act; one witness later gathered the charred remains of the flag and buried them in his backyard. No one was physically injured.

Of approximately 100 demonstrators present, only Johnson was charged with violating Section 42.09 of the Texas Penal Code — the state law that made it a criminal offence to desecrate a venerated object, including the flag, if the act were likely to incite anger in others. A Dallas County jury convicted Johnson. He was sentenced to 1 year in prison and fined $2,000. Johnson appealed, arguing his conduct was symbolic speech protected by the First Amendment.

The Texas Court of Criminal Appeals

Johnson's case worked its way to the Texas Court of Criminal Appeals, the state's highest court for criminal matters. That court reversed Johnson's conviction in 1988, holding that flag burning was symbolic speech protected by the First Amendment and that Texas had failed to demonstrate a sufficiently compelling government interest to justify suppressing it. Texas then appealed to the United States Supreme Court, which agreed to hear the case.

Justice Brennan's Majority Opinion

Justice William J. Brennan Jr. delivered the majority opinion for 5 justices. The majority included 2 conservatives — Justices Antonin Scalia and Anthony Kennedy — alongside the 3 liberal justices who might have been expected to rule in Johnson's favour.

Is Flag Burning Symbolic Speech?

The first question was whether Johnson's act was communicative enough to qualify as speech protected by the First Amendment. The majority answered yes. An act constitutes protected symbolic speech when it is intended to convey a particular message and when the surrounding circumstances make it likely that observers will understand the message. Johnson burned the flag during a political protest, at a political convention, in the context of an organised anti-Reagan demonstration. The message — political dissent — was unmistakeable. The act was, as Texas itself conceded, political speech.

Texas's 2 Interests and Why Both Failed

Texas offered 2 justifications for the law: preventing breaches of the peace, and preserving the flag as a symbol of nationhood and unity. The majority rejected both.

On breach of the peace: there was no evidence that Johnson's flag burning actually provoked or threatened to provoke a breach of the peace. Bystanders were offended, but they did not riot. The First Amendment does not permit the government to prohibit speech merely because some listeners find it offensive. The fighting words doctrine — which allows punishment of speech that directly provokes an immediate violent response — did not apply because the flag burning was not directed at a specific individual in a face-to-face encounter.

On protecting the flag as a national symbol: the majority acknowledged this as a genuine government interest. But the Constitution does not permit the government to ensure that a symbol be used only in ways it itself deems appropriate. Forcing citizens to treat the flag as a sacred and untouchable symbol is itself a form of government-compelled speech, which the First Amendment prohibits. The government could no more punish Johnson for burning a flag than it could punish someone for wearing the flag, using it as clothing, or burning a photograph of it. The message conveyed by each act might differ, but each reflects the flag's communicative power, which is precisely what the First Amendment protects.

The Bedrock Principle

Brennan's most quoted passage established the principle that makes the case significant beyond its specific facts: 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 itself offensive or disagreeable. Free speech protection would be hollow if it extended only to popular and inoffensive expression. The First Amendment exists precisely to protect the speech that most offends.

Justice Kennedy's Concurrence

Justice Anthony Kennedy, a conservative appointed by President Reagan, wrote a brief but notable concurrence. He acknowledged the profound discomfort of the ruling: The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. Kennedy said the case, by its very outcome, allows the symbol to endure, because the freedom that makes the flag worth honoring is preserved.

Chief Justice Rehnquist's Dissent

Chief Justice William Rehnquist, joined by Justices White and O'Connor, wrote a lengthy and passionate dissent. Rehnquist traced the flag's role in American history from the Revolutionary War through Vietnam, describing it as the visible symbol embodying the nation. He argued that the flag was not simply one communicative symbol among many but a unique and irreplaceable national emblem that the government had a legitimate interest in protecting.

Rehnquist contended that Johnson remained free to express his political views through words and other means. The First Amendment did not require the government to allow one specific mode of expression — burning the national flag — when other adequate channels for political dissent remained fully available. Johnson could say anything he wanted about Reagan, the Republican Party, or American foreign policy. What he could not do was burn the flag.

Justice Stevens's Dissent

Justice John Paul Stevens filed a separate dissent grounding his objection not in history but in the flag's status as a uniquely unifying symbol. Stevens argued that the flag is not simply a representation of a political position or an ideology but a symbol of the nation as a whole — including those who fought and died under it and those who continue to pledge allegiance to it. The flag's special status as a symbol of national unity outweighed the symbolic speech interest in a particular form of political expression. Stevens was not saying Johnson had no right to political protest — only that burning the flag, specifically, could lawfully be prohibited as a form of desecration of a unique national emblem.

The Immediate Aftermath: Congress Responds

The public and congressional reaction to Texas v. Johnson was one of the most intense responses to a Supreme Court decision since the Warren Court era. Polls showed large majorities of Americans believed flag burning should be illegal. Congress, including many Democrats, moved quickly to enact the Flag Protection Act of 1989, which made it a federal crime to mutilate, deface, defile, burn, or trample any U.S. flag. The Act was deliberately drafted to avoid the content-based discrimination that doomed the Texas law, by making the prohibition viewpoint-neutral and applying it regardless of the political message.

The Supreme Court struck down the Flag Protection Act in United States v. Eichman (1990) in a decision written again by Justice Brennan and joined by the same 5 justices as in Johnson. The Court held that the new law suffered from the same constitutional infirmity: it was directed at suppressing a particular form of political expression, and the First Amendment did not permit this regardless of how the prohibition was phrased. Congress has since passed proposed constitutional amendments to overrule Johnson multiple times in the House but has never achieved the two-thirds Senate majority needed to send an amendment to the states for ratification.

Who Won Texas v. Johnson?

Who won Texas v. Johnson? Johnson won. The Supreme Court ruled 5-4 in his favour, overturning his conviction and declaring Texas's flag desecration law unconstitutional.

Frequently Asked Questions

Is burning the American flag illegal?

No. Flag burning is constitutionally protected symbolic speech under the First Amendment. Texas v. Johnson (1989) and United States v. Eichman (1990) established this. The government cannot make flag burning a crime when the purpose is to express political dissent.

What was the flag burning case?

The main flag burning case is Texas v. Johnson (1989), in which the Supreme Court held 5-4 that burning the American flag as political protest is protected symbolic speech. A follow-up case, United States v. Eichman (1990), struck down a federal flag protection law on the same grounds.

Did the Supreme Court rule flag burning is protected?

Yes. In Texas v. Johnson (1989), the Supreme Court held that flag burning as a form of political protest is protected symbolic speech under the First Amendment. The government cannot punish someone for burning a flag to express political dissent.

Timeline

Texas v. Johnson remains one of the most provocative First Amendment decisions ever issued, a ruling that protected the right to commit an act that the majority of Americans found deeply offensive precisely because that protection is the truest test of the First Amendment's strength.