Texas v. Johnson
The First Amendment only recently became synonymous with protecting acts of defiance. The Texas v. Johnson case of 1989 was a landmark U.S. Supreme Court decision that voided many state laws prohibiting desecration of the flag or other venerated objects. In its decision on this case regarding public demonstrations of flag burning the Court found the First Amendment protects actions as free speech.
In reaching its decision, Supreme Court justices considered precedents for actions being protected under the free speech clause of the First Amendment. Their deliberations called upon two prior cases, Stromberg v. California which determined that flying a red flag was protected speech and Tinker v. Des Moines Independent Community School District which determined that wearing a black armband was protected speech. In both cases the states involved had laws prohibiting certain items or acts. In these cases the Supreme Court felt that the Fourteenth Amendment supported the First Amendment’s protections as long as the actions involved a political message communicated by the act that was akin to speech.
Another case the justices referenced was Brandenburg v. Ohio to assess the effect of the flag burning: did it, or was it intended to incite other illegal acts or violence, or was it a stand-alone act?
One of the primary concerns the Supreme Court justices grappled with was whether the flag, as a symbol of the country, merits special protection under the law or if free speech rights trumps that status.
The Court’s decision was split 5-4 and remains controversial.
A rally outside the Republican National Convention in Dallas in 1984 involved a member of a communist youth group, Gregory Johnson, burning the American flag in front of City Hall. It was part of a raucous demonstration against the government that included destruction of property, chanting, and throwing trash. At the time, 48 states including Texas had laws prohibiting flag burning. Johnson was arrested and fined $2,000 as well as sentenced to a year in jail.
Johnson’s conviction was appealed twice, and the second time the Texas Court of Criminal Appeals overturned it, agreeing that burning the flag was protected speech.