Texas v. Johnson

Following is the case brief for Texas v. Johnson, Supreme Court of the United States, (1989)

Case Summary of Texas v. Johnson:

  • Johnson was arrested for burning an American flag at a political rally in violation of a Texas statute which prohibited public desecration of the flag.
  • Johnson then appealed to the Court of Criminal Appeals, who reversed his conviction and the case was petitioned to the Supreme Court of the United States.
  • The Supreme Court held that the right to burn the American flag in political protest was protected under the First Amendment right to freedom of speech.

Texas v. Johnson Case Brief

Statement of the Facts:

Gregory Lee Johnson was convicted for desecrating a flag after publically burning an American flag in political protest at a Republican rally. Johnson then challenged his conviction under the Texas state law in a state court claiming the law violated his First Amendment right to freedom of speech.

Procedural History:

The Court of Criminal Appeals in Texas reversed Johnson’s conviction. The United States Supreme Court granted certiorari.

Issue and Holding:

Does a state statute that criminalizes the burning of an American flag in political protest violate the First Amendment? Yes.

Rule of Law or Legal Principal Applied:

The First Amendment prevents a state from criminalizing the burning of an American flag as a means of political protest.


The Supreme Court affirmed the judgment of the Court of Criminal Appeals.


The Court first determines it is necessary to determine whether or not Johnson’s conduct was expressive conduct. If it is, then Johnson would be permitted to invoke his First Amendment right.

If the conduct is expressive then the Court must determine whether the state’s law is related to suppressing free expression. If on the contrary, conduct is not expressive, the Court must apply the analysis for non-communicative conduct established in the United States v. O’Brien, 391 U.S. 367 (1968) decision.

To appropriately determine if the O’Brien test applies, the Court must determine if Texas claims as interest in supporting Johnson’s convictions unrelated to suppressing expression.

The two interests stated are: preventing a breach of the peace and preserving the flag as a symbol of nationhood and national unity. Since no disturbance of the peace actually occurred because of the flag burning this reason is irrelevant.  Preserving the flag for the stated purposes is related to the suppression of expression because Texan is concerned flag burning may lead people to believe the flag does not stand for national unity and nationhood or that the nation is not unified. O’Brien is not applicable.

Johnson was convicted because of his expression of dissatisfaction with the policies of his country. The interest in preserving the special symbolic character of the flag is subject to the most exacting level of scrutiny. Precedent does not suggest a state may promote its view of the flag through prohibiting the expressive conduct of its citizens.

The principle that the government cannot prevent expression it disagrees with is not contingent on the particular method one seeks to express an idea. As a result, it would be inconsistent to hold an individual is free to express disagreement with a political viewpoint in any manner except flag burning.

It is nonsensical to allow a state to permit flag burning in some instances and not others as such a principle lacks discernable or defensible boundaries. As a result, the First Amendment cannot support Johnsons’s conviction of flag burning for the purpose of political expression.

The Court further stated that the best way to respond to the burning of an American flag is waving their own.

This judgment does not weaken the flag’s status in the American society. Instead, it strengthens its status, portraying it as a symbol of free expression on which the U.S. democratic system of governance is based.

Concurring and Dissenting opinion:

Dissenting (Rehnquist):

The American flag has a unique and symbolic place in the U.S. There is no other symbol more honored and respected. Historically it has become an embodiment of the U.S. There is no specific political party, point of view or political philosophy affiliated with the flag. As a result, it is unlikely that the First Amendment permits flag burning as a protected form of speech. Many find flag burning offensive even when used in the context of political protest. Johnson many express his opinions in other forms and the state statute is constitutional.

Dissenting (Stevens):

This case begs the question whether the state or federal government has the power to ban public desecration of the flag.  Since the flag is a unique symbol of respect, basic rules applying to other symbols do not apply to the American flag. The argument that flag burning is a protected form of freedom of expression is unpersuasive because the costs of protecting such a form of freedom are too great. Protecting desecration of the flag does not further the protection of freedom of expression.


Texas v. Johnson was the landmark case which established the right of American’s to burn an American flag as a symbol of expression and stressed the importance of the First Amendment freedom of expression.Prior to this decision, the answer was very unclear.

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