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

"O say does that star-spangled banner yet wave
O'er the land of the free & the home of the brave?"
--(Washington lawyer) Francis Scott Key

Dallas, Texas, 1984. Inside City Hall, the Republicans are renominating Ronald Reagan for President. Outside, protestors chant "Reagan, Mondale which will it be? Either one means World War III" and "Red, white and blue, we spit on you. You stand for plunder, you will go under." Gregory "Joey" Johnson pours kerosene on an American flag, and sets it on fire.

Texas Penal Code outlaws "the desecration of a venerated object." The State convicts Johnson. At his trial, Johnson explained his reasons for burning the flag: "The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn't have been made at that time. It's quite a just position. We had new patriotism and no patriotism."

A state appeals court overturns Johnson's conviction. So Texas takes the question to the U.S. Supreme Court. The vote is 5 to 4: Johnson is not guilty. Justice William Brennan writes: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable... We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag -- and it is that resilience that we reassert today."

In his dissenting opinion, Justice Stevens argues: "The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for -- and our history demonstrates that they are -- it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."

Justice Kennedy, in his concurring opinion, writes: "It is poignant but fundamental that the flag protects those who hold it in contempt."

For more...

The Betsy Ross Homepage

The Flag Burning Page

Citizens' Flag Alliance

AMENDMENT 1 Freedom of Religion, Speech, and Assembly

Passed by Congress September 25, 1789. Ratified December 15, 1791.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [^].

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