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Flag-burning blast from the past: Texas v. Johnson, June 21, 1989
J. Scalia gets a lot of bad press at DU, but he was a total junkyard dog on 1A.
Texas v. Johnson
Holding
A statute that criminalizes the desecration of the American flag violates the First Amendment. Texas Court of Criminal Appeals affirmed.
Case opinions
Majority: Brennan, joined by Marshall, Blackmun, Scalia, Kennedy
Concurrence: Kennedy
Dissent: Rehnquist, joined by White, O'Connor
Dissent: Stevens
Laws applied: U.S. Const. amends. I, XIV; Desecration of a Venerated Object, Tex. Penal Code § 42.09(a)(3)
Wikisource has original text related to this article: Texas v. Johnson
Texas v. Johnson, 491 U.S. 397 (1989), was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that defendant Gregory Lee Johnson's act of flag burning was protected speech under the First Amendment to the United States Constitution. Johnson was represented by attorneys David D. Cole and William Kunstler.
....
The Supreme Court's decision
The opinion of the Court came down as a controversial 5–4 decision, with the majority opinion being authored by Justice William J. Brennan, Jr. and joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy. In addition to joining the majority opinion, Kennedy also authored a separate concurrence.
The Court first considered the question of whether the First Amendment to the United States Constitution protected non-speech acts, since Johnson was convicted of flag desecration rather than verbal communication, and, if so, whether Johnson's burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction.
The First Amendment specifically disallows the abridgment of "speech," but the court reiterated its long recognition that its protection does not end at the spoken or written word. This was concluded based on the 1931 case Stromberg v. California, which ruled the display of a red flag as speech, and the 1969 case Tinker v. Des Moines Independent Community School District, which ruled the wearing of a black armband as speech.
The Court 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," but acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court asked whether "an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."
The Court found that, under the circumstances, Johnson's burning of the flag "constituted expressive conduct, permitting him to invoke the First Amendment." "Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent." The court concluded that, while "the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word," it may not "proscribe particular conduct because it has expressive elements."
Texas had conceded, however, that Johnson's conduct was expressive in nature. Thus, the key question considered by the Court was "whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression."
At oral argument, the state defended its statute on two grounds: first, that states had a compelling interest in preserving a venerated national symbol; and second, that the state had a compelling interest in preventing breaches of the peace.
As to the "breach of the peace" justification, however, the Court found that "no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag," and Texas conceded as much. The Court rejected Texas's claim that flag burning is punishable on the basis that it "tends to incite" breaches of the peace, citing the test from the 1969 case Brandenburg v. Ohio that the state may only punish speech that would incite "imminent lawless action," finding that flag burning does not always pose an imminent threat of lawless action. The Court noted that Texas already punished "breaches of the peace" directly.
Holding
A statute that criminalizes the desecration of the American flag violates the First Amendment. Texas Court of Criminal Appeals affirmed.
Case opinions
Majority: Brennan, joined by Marshall, Blackmun, Scalia, Kennedy
Concurrence: Kennedy
Dissent: Rehnquist, joined by White, O'Connor
Dissent: Stevens
Laws applied: U.S. Const. amends. I, XIV; Desecration of a Venerated Object, Tex. Penal Code § 42.09(a)(3)
Wikisource has original text related to this article: Texas v. Johnson
Texas v. Johnson, 491 U.S. 397 (1989), was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that defendant Gregory Lee Johnson's act of flag burning was protected speech under the First Amendment to the United States Constitution. Johnson was represented by attorneys David D. Cole and William Kunstler.
....
The Supreme Court's decision
The opinion of the Court came down as a controversial 5–4 decision, with the majority opinion being authored by Justice William J. Brennan, Jr. and joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy. In addition to joining the majority opinion, Kennedy also authored a separate concurrence.
The Court first considered the question of whether the First Amendment to the United States Constitution protected non-speech acts, since Johnson was convicted of flag desecration rather than verbal communication, and, if so, whether Johnson's burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction.
The First Amendment specifically disallows the abridgment of "speech," but the court reiterated its long recognition that its protection does not end at the spoken or written word. This was concluded based on the 1931 case Stromberg v. California, which ruled the display of a red flag as speech, and the 1969 case Tinker v. Des Moines Independent Community School District, which ruled the wearing of a black armband as speech.
The Court 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," but acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court asked whether "an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."
The Court found that, under the circumstances, Johnson's burning of the flag "constituted expressive conduct, permitting him to invoke the First Amendment." "Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent." The court concluded that, while "the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word," it may not "proscribe particular conduct because it has expressive elements."
Texas had conceded, however, that Johnson's conduct was expressive in nature. Thus, the key question considered by the Court was "whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression."
At oral argument, the state defended its statute on two grounds: first, that states had a compelling interest in preserving a venerated national symbol; and second, that the state had a compelling interest in preventing breaches of the peace.
As to the "breach of the peace" justification, however, the Court found that "no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag," and Texas conceded as much. The Court rejected Texas's claim that flag burning is punishable on the basis that it "tends to incite" breaches of the peace, citing the test from the 1969 case Brandenburg v. Ohio that the state may only punish speech that would incite "imminent lawless action," finding that flag burning does not always pose an imminent threat of lawless action. The Court noted that Texas already punished "breaches of the peace" directly.