Texas V. Johnson - The Supreme Court's Decision

The Supreme Court's Decision

The opinion of the court came down as a controversial 5-4 decision, with the majority opinion written by William J. Brennan, Jr. Justices Marshall, Blackmun, Scalia, and Kennedy joined Brennan, with Kennedy also writing a concurrence.

In determining the case, the court first considered the question of whether the First Amendment reached non-speech acts, since Johnson was convicted of flag desecration rather than verbal communication, and, if so, whether Johnson's burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction.

The First Amendment specifically disallows the abridgment of "speech," but the court reiterated its long recognition that its protection does not end at the spoken or written word. This was an uncontroversial conclusion in light of cases such as Stromberg v. California (display of a red flag as speech) and Tinker v. Des Moines Independent Community School District (wearing of a black armband as speech).

The court rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," but acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court asked whether "an intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it."

The court found that, "Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment... Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent." The court concluded that, while "the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word," it may not "proscribe particular conduct because it has expressive elements."

Texas had conceded, however, that Johnson's conduct was expressive in nature. Thus, the key question considered by the Court was "whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression."

At oral argument, the state defended its statute on two grounds: first, that states had a compelling interest in preserving a venerated national symbol; and second, that the state had a compelling interest in preventing breaches of the peace.

As to the "breach of the peace" justification, however, the court found that "no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag," and Texas conceded as much. The Court rejected Texas's claim that flag burning is punishable on the basis that it "tends to incite" breaches of the peace by citing the familiar test of Brandenburg v. Ohio that the state may only punish speech that would incite "imminent lawless action," finding that flag burning does not always pose an imminent threat of lawless action. The Court noted that Texas already punished "breaches of the peace" directly. "The most contentious issue before the Court, then, was whether states possessed an interest in preserving the flag as a unique symbol of national identity and principles. Texas argued that desecration of the flag impugned its value as such a unique national symbol, and that the state possessed the power to prevent this result."