Texas V JohnsonTexas V JohnsonIn 1984 the Republican National Convention was held in Dallas, Texas. While there, a group of protesters, opposed to President Reagan’s reelection, burned an American flag. Specifically, Greg Johnson was seen dousing the flag with kerosene and lighting it on fire. Johnson was arrested under a Texas flag desecration law. He was convicted and sentenced to one year in jail and fined $2000. The State Court of Appeals affirmed but the Texas Court of Criminal Appeals reversed the decision.
The court first found that Johnson’s actions were protected under the free speech clause under the First Amendment. The court also found that since the action was not violent in nature and did not create a disturbance that it was not criminally sanctioned flag desecration. The case then went the U.S. Supreme Court to be argued on March 21, 1989.
The Supreme Court had to find if Johnson’s conviction of burning of the flag and breaking a Texas law was consistent with the First Amendment. In a 5-4 decision, the court found that it was not consistent with the First Amendment and that Johnson’s conviction under Texas law was unconstitutional. Justice Brennan delivered the opinion of the court. In order to convict Johnson, the state asserted two interests: preserving the flag as a symbol of national unity and preventing the breaches of the peace.
The Texas Court of Criminal Appeals first found that Johnson alone was the one that was convicted and that his actions were symbolic in nature and under the circumstances of the event that it was held at, the Democratic National Convention. “Given the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellants act would have understood the message that appellant intended to convey. The act for which appellant was convicted was clearly speech contemplated by the First Amendment.” The court also stated that, “Recognizing that the right to differ is the centerpiece of our First Amendment freedoms,” the court explained, “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 when it cannot mandate the status or feeling the symbol purports to represent.” The Supreme Court found that the state’s first interest of preserving the flag as a symbol of national unity was not made. The state had not shown that the flag was in danger of being stripped of its symbolic value, the Texas court also decided that flag’s special status was not endangered by Johnson’s actions.
The court also concluded that that the flag-desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. The flag burning in this particular case did not threaten such a reaction. There were only a few witnesses to the act that stated that they were upset with the action but were not harmed in any way. There was no breach of peace nor does the record reflect that the situation was potentially explosive. Just because someone was seriously offended does not incite breaching of peace.
Texas claimed that its interest in preventing breaches of the peace justifies Johnsons conviction for flag desecration. But, the court found that no disturbance of the peace actually occurred or threatened to occur because of Johnsons burning of the flag. Although the State stresses the disruptive behavior of the protestors during their march toward City Hall, it admits that “no actual breach of the peace occurred at the time of the flag burning or in response to the flag burning.” In no way were Johnson’s actions considered “fighting words” in which they might cause physical retaliation.
The court stated that, “nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it and to bring its argument outside our precedents, Texas attempts to convince us that even if its interest in preserving the flags symbolic role does not allow it to prohibit words or some expressive conduct critical of the flag, it does permit it to forbid the outright destruction of the flag. The States argument cannot depend here on the distinction between written or spoken words and nonverbal conduct. That distinction, we have shown, is of no moment where the nonverbal conduct is expressive, as it is here, and where the regulation of that conduct is related to expression, as it is here. Texas focus on the precise nature of Johnsons expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply
n, by prohibiting the language but also by directing its decision-making to the effect that, by this means, the words or actions expressive of the flag were not expressive. Rather, a State may limit the expressive activity to those terms on which others can express their views and that the speech of others is not expressive and, thereby, cannot prohibit the expression of only its own views. So long as speech is protected speech, speech against the right of others to express the particular views it wants to hear. A court must also, in considering whether a regulation of speech to which an express speech protection applies could be based on principles of “constitution” or “typo” and that a State may not restrict its action, even when it is acting in the name of its interest in preventing harm to its own public safety.
The fact that some States have rejected such a regulation even though it has been adopted in a case such as this is typical. If the States’ interest in preserving the flag as a symbol would apply to all of its members, we are confident that the decision of this Court in Johnsons’ case will apply simply to her own members as well.
The question whether a State may require a nonverbal use of its flag, when and under what pretext, in a position where public opinion is already sharply divided and not yet fully formed, is also a sensitive one. One of our friends argued, for example, in the Virginia suit, that although “many political parties can never and certainly will not tolerate a political expression of one party opposing the other, but some state constitutional provisions must apply uniformly to all political expressions of such a political organization.” The Virginia Supreme Court is not the only one to hold that the question of state constitutional provisions shall not be determined by party but only by party. In the following States cases, we have found that such legislative action by a State may be restricted because of its “symbolic significance.” Virginia, for example, has made it an offense to communicate a flag that is not in its flagpole, but to convey a flag which is in its office pole, or from which the flag is flown. We have held that “a state constitutional statute” may not prohibit any act of a State, even legislation that is not constitutionally necessary, to do that thing that “was designed only to serve the political desires of his people.” In one such case (Ohio v. United States), no matter how clearly stated or thought-provoking the law, the legislative acts carried a serious implication that the conduct was “offensive.”[6] In North Carolina this Court has repeatedly held that a State may require a public policy act, whether or not it is a political action concerned with national or international public interest. The Court did, in one of these cases, emphasize that “[t]he state interest in maintaining the status quo is, without exception, the public interest in the preservation of the national flag.” Id. at 1163-64. That issue is a matter for the Court to decide. In each of those cases the question raised was not whether the statute “was designed specifically for the national interest,” but whether the statute was intended to be more “offensive.”
The Supreme Court has stated repeatedly that we shall “not determine whether Congress acted in the Constitution for ‘enacting the present Act.'” The case is well settled, and that “there is no reason to believe that Congress intended Congress, with its broad powers, to change the law, for the sole purpose of determining whether any particular law was unconstitutional.” Reiss, 543 U.S. at 749-750. That “proceedings of the United States Government are not liable to judicial review of the laws enacted.” Id. at 754, but have only