Gregory Lee Johnson participated in a political demonstration during
the Republican National Convention in Dallas, Texas, in 1984. The
purpose of the demonstration was to protest policies of the Reagan
Administration and of certain corporations based in Dallas.
Demonstrators marched through the streets, chanted slogans, and held
protests outside the offices of several corporations. At one point,
another demonstrator handed Johnson an American flag.
When the demonstrators reached Dallas City Hall, Johnson doused the
flag with kerosene and set it on fire. During the burning of the flag,
the demonstrators shouted, "America, the red, white, and blue, we spit
on you." No one was hurt or threatened with injury, but some witnesses
to the flag burning said they were seriously offended. One witness
picked up the flag's charred remains and buried them in his backyard.
Johnson was charged with the desecration of a venerated object, in
violation of the Texas Penal Code. He was convicted, sentenced to one
year in prison, and fined $2,000. He appealed his conviction to the
Court of Appeals for the Fifth District of Texas, which let his
conviction stand. He then appealed to the Texas Court of Criminal
Appeals, which is the highest court in Texas that hears criminal cases.
That court overturned his conviction saying that the State, consistent
with the First Amendment, could not punish Johnson for burning the flag
in these circumstances.
The court first found that Johnson's burning of the flag was
expressive conduct protected by the First Amendment. Therefore in order
for a state to criminalize or regulate such conduct it would have to
serve a compelling state interest that would outweigh the protection of
the First Amendment. The court concluded that criminally sanctioning
flag desecration in order to preserve the flag as a symbol of national
unity was not a compelling enough interest to survive the constitutional
challenge. It also held that while preventing breaches of the peace
qualified as a compelling state interest the statute was not drawn
narrowly enough to only punish those flag burnings that would likely
result in a serious disturbance. Further, it stressed that another Texas
statute prohibited breaches of the peace and could serve the same
purpose of preventing disturbances without punishing this flag
The court said, "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. Therefore that very
same government cannot carve out a symbol of unity and prescribe a set
of approved messages to be associated with that symbol. . . . " The
court also concluded that the flag burning in this case did not cause or
threaten to cause a breach of the peace.
The State of Texas filed a petition for a writ of certiorari and, in
1988, the Supreme Court of the United States agreed to hear the case. In
1989, the Court handed down its decision.
Questions to Consider
Read the First Amendment to the U.S. Constitution. What part of the Amendment is relevant to this case?
What do you think is meant by "symbolic speech?" What are some other examples?
What argument could you make that flag burning threatens to cause violence and therefore should be against the law?
What arguments could you make that the First Amendment should protect flag burning?
How should the Supreme Court of the United States decide this case? Why?