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To understand Texas v. Johnson (1989), one must first understand the history of the Flag of the United States. When created during the American Revolution, the U.S. flag was one of several banners the Continental Army and state militias fought under. Even after the conflict, the U.S. military did not formally adopt the flag for another fifty years, suggesting that the American public had a certain ambivalence about the flag. During the Civil War, the U.S. flag became identified with the Union cause. In the late nineteenth century, the Flag Protection Movement spoke out against using the flag as a marketing device or desecrating it for protest purposes.


In 1984, Republican delegates gathered in Dallas Texas to re-nominate President Ronald Regan for president. Outside, a group of demonstrators gathered to protest the Reagan administration’s foreign policy. One of the protesters, Gregory Lee Johnson, was given a U.S. flag stolen by another protester. Johnson proceeded to soak the flag in kerosene and set it on fire. While he burned the flag, other protestors encircled him and chanted, “America, the red, white, and blue, we spit on you.” No one was injured or threatened with an injury during this incident. However, many witnesses were offended. Soon after the event, Dallas police arrested Johnson for violating a Texas Penal Code that made it illegal to desecrate a “venerable object.” Although represented by famous defense attorneys David D. Cole and William Kunstler, Johnson was sentenced to a year in jail and a $2,000 fine in a Texas District Court. Johnson appealed his case to the Texas Fifth Court of Appeals, which in 1986 reaffirmed the District Court’s decision. However, the Texas Court of Criminal Appeals overturned Johnson’s conviction on the grounds that Johnson’s burning of the flag was “symbolic speech,” protected by the First Amendment. Texas officials then asked the U.S. Supreme Court to hear the case.

- Esperanza Miranda


Constitutional Issue Raised in the Case


Is flag burning protected under the First Amendment’s guarantee of freedom of speech? Are there circumstances in which flag burning is not constitutionally protected?


Citation and Decision

Texas v. Johnson, 491 U.S. 397 (1989) | Full Decision


On June 2, 1989, the Supreme Court held, in a 5-4 decision, that Johnson’s actions were a form of symbolic speech. His actions were protected under the First Amendment because they qualified as “expressive conduct” with a specific political purpose. The Court also found that there was no breach of peace because flag burning did not classify as fighting words (or speech calculated to cause an emotional, violent reaction) which violates the First Amendment. The Court also ruled that Texas’s interest in preserving the flag as a symbol of nationhood and national unity did not justify Johnson’s conviction. Lastly, the Court decided that social outrage alone was not sufficient justification for states to prohibit the expression of an idea. The Texas penal code, which Johnson was convicted under, was accordingly struck down.


Discussion Questions


1. Did this case set a precedent for future cases?


2. What could Texas officials have charged Johnson with that would not have resulted in a constitutional violation?


3. How can the outcome of this case relate to current issues happening today?


4. Do you believe Congress could ever pass a Flag Desecration Amendment? Why or why not?


5. What feelings did the court decision inspire amongst the American people?


Oyez: Texas v. Johnson (1989)

Time: This is why its legal to burn the American flag

First Amendment Center: Texas v. Johnson (1989)

CSPAN: Joey Johnson and Texas v. Johnson (1989)


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