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Texas v. Johnson

Supreme Court of the United States · 1989 · Constitutional Law

Constitutional LawFirst Amendmentsymbolic speechflag burningexpressive conductFirst Amendmentexpressive conductsymbolic speech

Facts

During the 1984 Republican National Convention in Dallas, Johnson participated in a political demonstration protesting the Reagan administration and certain corporations. At the end of the demonstration, in front of Dallas City Hall, he unfurled an American flag, doused it with kerosene, and burned it while protesters chanted political slogans. No one was injured or threatened with injury, though several witnesses were seriously offended. Johnson was convicted under a Texas statute that criminalized intentionally or knowingly desecrating a state or national flag by physically mistreating it in a way the actor knows will seriously offend likely observers.

Issue

Whether Texas may, consistent with the First Amendment, criminally punish Johnson for burning an American flag as part of a political protest. More specifically, whether Johnson's flag burning was protected expressive conduct and whether Texas' asserted interests justified his conviction.

Rule

Conduct is protected by the First Amendment when it is sufficiently imbued with elements of communication, meaning there was an intent to convey a particularized message and a great likelihood that viewers would understand it. When the government's asserted interest is related to the suppression of expression, O'Brien does not apply; instead, content-based restrictions on expressive conduct are subject to the most exacting scrutiny, and the government may not prohibit expression simply because society finds the idea offensive or disagreeable.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

During a labor protest outside the state capitol in Columbus, Ohio, Nina Patel takes her own American flag, splashes it with paint, and cuts it into strips while chanting against federal trade policy. The crowd has been listening to speeches and reading flyers about the protest's message, and several onlookers say they immediately understood Nina's act as political condemnation.

If Ohio prosecutes Nina under a statute prohibiting physical mistreatment of the flag when the actor knows observers will be seriously offended, which is the strongest First Amendment argument for Nina?

Explanation. The majority held that conduct is protected when it is sufficiently imbued with elements of communication: the actor must intend to convey a particularized message, and there must be a great likelihood that viewers would understand it. In the context of an organized political protest with speeches, flyers, and chants, Nina's act would likely qualify as expressive conduct. The Court rejected the notion that only verbal expression is protected, and it did not adopt a rule that all flag destruction is unprotected. Actual offense does not determine whether the First Amendment applies.