Texas v. Johnson (1989)491 U.S. 397 (1989) | Rehnquist Court

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Texas v. Johnson established that the burning of the American flag was protected under the First Amendment as symbolic speech on similar grounds to Brandenburg v. Ohio. In 1984, Gregory Johnson burned an American flag in front of Dallas City Hall while protesting the Reagan administration. Along with forty-seven other states, Texas had a law against flag desecration and Johnson was prosecuted and convicted for his actions. In a close 5-4 decision, the Court decided that the Texas law violated Johnson’s right to free speech. His action, overtly political in nature, constituted an expression of symbolic speech. Moreover, the Court noted that although the flag-burning might have resulted in a disturbance of the peace, that disturbance would have been due to the offense taken by onlookers, which was not in itself the responsibility of the defendant. Johnson’s action was not an invitation to confrontation, nor was there evidence that it would incite a riot. Even in the case of flag desecration, the government could not restrain the expression of ideas.

The dissenting members of the Court, led by Justice Stevens, argued that the American flag held a special status as a symbol of national unity. In their opinion, this status was more important than claims of symbolic speech – the government should be able to ban flag burning. Congress agreed, passing the Flag Protection Act the same year. However, when the issue was brought before the Court for a second time in United States v. Eichman (1990), the Court stood by the Texas decision. Since then, members in Congress have made numerous unsuccessful attempts to ban flag desecration.