The case was decided 5 to 4. Justice Brennan delivered the opinion of the Court.
The First Amendment literally forbids the abridgment only of
"speech", but we have long recognized that its protection does not end
at the spoken or written word. While we have rejected "the view that an
apparently limitless variety of conduct can be labeled 'speech' whenever
the person engaging in the conduct intends thereby to express an idea,"
. . . we have acknowledged that conduct may be "sufficiently imbued
with elements of communication to fall within the scope of the First and
14th Amendments," . . .
We have not automatically concluded, however, that any action taken
with respect to our flag is expressive. Instead, in characterizing such
action for First Amendment purposes, we have considered the context in
which it occurred.
. . . Johnson burned an American flag as part - indeed, as the
culmination - of a political demonstration that coincided with the
convening of the Republican Party and its re-nomination of Ronald Reagan
for President. The expressive, overtly political nature of this conduct
was both intentional and overwhelmingly apparent. . . .
The government generally has a freer hand in restricting expressive
conduct than it has in restricting the written or spoken word. . . . It
may not, however, proscribe particular conduct because it has expressive
elements. . . .
It remains to consider whether the State's interest in preserving the
flag as a symbol of nationhood and national unity justifies Johnson's
. . . Johnson was not, we add, prosecuted for the expression of just
any idea; he was prosecuted for his expression of dissatisfaction with
the policies of this country, expression situated at the core of our
First Amendment values. . . .
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. . . .
. . . To conclude that the government may permit designated symbols
to be used to communicate only a limited set of messages would be to
enter territory having no discernible or defensible boundaries. Could
the government, on this theory, prohibit the burning of state flags? Of
copies of the Presidential seal? Of the Constitution? In evaluating
these choices under the First Amendment, how would we decide which
symbols were sufficiently special to warrant this unique status? To do
so, we would be forced to consult our own political preferences, and
impose them on the citizenry, in the very way that the First Amendment
forbids us to do. . . .
There is, moreover, no indication-either in the text of the
Constitution or in our cases interpreting it-that a separate juridical
category exists for the American flag alone . . . It is not the State's
ends, but its means, to which we object. It cannot be gainsaid that
there is a special place reserved for the flag in this Nation, and thus
we do not doubt that the government has a legitimate interest in making
efforts to "preserv[e] the national flag as an unalloyed symbol of our
country." . . . To say that the government has an interest in
encouraging proper treatment of the flag, however, is not to say that it
may criminally punish a person for burning a flag as a means of
We are tempted to say . . . that the flag's deservedly cherished
place in our community will be strengthened, not weakened, by our
holding today. Our decision is a reaffirmation of the principles of
freedom and inclusiveness that the flag best reflects, and of the
conviction that our toleration of criticism such as Johnson's is a sign
and source of our strength. Indeed, one of the proudest images of our
flag, the one immortalized in our own national anthem, is of the
bombardment it survived at Fort McHenry. It is the Nation's resilience,
not its rigidity, that Texas sees reflected in the flag-and it is that
resilience that we reassert today.
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.
Johnson was convicted for engaging in expressive conduct. The State's
interest in preventing breaches of the peace does not support his
conviction because Johnson's conduct did not threaten to disturb the
peace. Nor does the State's interest in preserving the flag as a symbol
of nationhood and national unity justify his criminal conviction for
engaging in political expression. The judgment of the Texas Court of
Criminal Appeals is therefore Affirmed.
Questions to Consider
According to this opinion, why does the First Amendment protect the flag burning in which Johnson engaged?
How would prohibiting flag burning prevent "breaches of the peace?" Did the Court accept the State's argument to this effect?
According to the Court, Texas asserted an interest in preserving the
flag as a symbol of national unity. How does the Court respond to this
Why does the Court say that the flag's position as a symbol will be strengthened, not weakened, by their decision in this case?
How does the Court recommend that supporters of the flag respond to those who desecrate it?