Texas v. Johnson

Explanation and Analysis of the Document

Coming near the end of Brennan's tenure on the Court, Texas v. Johnson was not a milestone in the sense that many of his earlier opinions were, but it was the most publicly controversial decision of his long career. The case concerned a radical demonstrator, Gregory Lee Johnson, who chose a particularly dramatic means of expressing his criticism of Republican policies during the 1984 Republican National Convention in Dallas: He burned the American flag. Within a half hour, police had arrested Johnson for violating a Texas statute barring violation of venerated objects. A trial jury found Johnson guilty, sentencing him to a year in prison and a $2,000 fine, but the Texas Court of Criminal Appeals overturned his conviction on the ground that Johnson was exercising his right of political dissent. Texas then appealed to the U.S. Supreme Court, confident that the Court's new conservative majority would uphold the state antidesecration statute.

The state of Texas did not, however, understand the power of precedent. While it is true that the Court had not yet ruled definitively on the constitutionality of flag desecration, as Brennan points out in his opinion for the Court, in West Virginia State Board of Education v. Barnette (1943) the Court had indicated that failure to demonstrate respect for the flag—in this case, by refusing to salute it—was a permissible exercise of the First Amendment right to express political dissent. For Brennan, such political “statements” made with respect to the flag, itself a symbol, were obviously symbolic. But are they speech of the sort protected by the First Amendment? The Court had found in the past that various forms of expressive conduct were equivalent to protected speech. For example, the Court had upheld as protected symbolic conduct the wearing of black armbands to protest military involvement in Vietnam and a sit-in by blacks in a “whites only” area to protest racial segregation.

Not every act intended as political dissent—even among those involving flag desecration—is protected, since government may have an overriding interest to protect. Such was the case in United States v. O'Brien (1968), where draft-card burning was considered to have combined speech and nonspeech elements and where the government was found to have a legitimate interest—protecting its ability to raise and support an army—that trumped the defendant's right to communicate his antiwar beliefs. When considering expressive conduct, Brennan notes, the Court has always taken context into account. At trial, Johnson had stated the reason for his actions this way: “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.” While it is true that the Court has greater latitude in restricting expressive conduct than it does in curtailing words per se, for Brennan, Johnson's rationale certainly supersedes the state's claim that Johnson's arrest was aimed at preventing breaches of the peace. And he is unequivocal in dismissing the state's claim that its statute must be upheld because it is intended to preserve the flag's status as a symbol of nationhood: “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.”

Johnson provoked immediate public controversy. In Brennan's home state of New Jersey, residents of Hudson County, where Brennan had begun his judicial career, circulated a petition to stop the creation of a statue honoring the justice. Only a few months after the Court passed down the Johnson decision, Congress passed the Flag Protection Act of 1989, which attempted to overrule the case by legislation. The next year, in United States v. Eichman (for which Brennan also wrote the majority opinion), the Court declared that this federal law, like the Texas statute at issue in Johnson, violated the First Amendment. Subsequently, Congress has made several attempts to pass a constitutional amendment prohibiting flag desecration, one of which failed in the Senate by one vote in 2006.