Texas v. Johnson Summary | quimbee.com
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Texas v. Johnson Summary | quimbee.com

– [Narrator] The First
Amendment protects free speech, including expressive conduct. But does it shield someone burning the American flag in protest? In Texas versus Johnson, the United State Supreme
Court answered that question. In 1984, Gregory Lee Johnson participated in a protest of the Republican National Convention. Outside the Dallas City Hall, Johnson doused an American
flag with kerosene and set it on fire. As the flag burned, protesters chanted quote, “America the red, white, and blue, “we spit on you,” unquote. Johnson was charged with
desecration of a venerated object under Texas law. The trial court convicted Johnson, fining him $2,000 and sentencing
him to one year in prison. The Court of Appeals for the Fifth District of Texas affirmed. However, the Texas Court of
Criminal Appeals reversed, concluding that Johnson’s punishment violated the First Amendment. The United States Supreme
Court accepted the case to determine whether states could criminalize burning
the American flag. The court concluded that flag
burning is expressive conduct protected by the First Amendment. As a result, state laws
criminalizing flag burning were content-based speech restrictions that didn’t survive
constitutional scrutiny. Writing for a five-justice majority, Justice Brennan concluded that the First Amendment
protected flag burning because it contained a sufficient
level of communication. By burning the flag, Johnson intended to convey a particular message, and it was likely that anyone
who witnessed his conduct would understand that message. For First Amendment purposes, the government has more leeway in regulating expressive conduct than it does in regulating
written or spoken words. When speech and non-speech elements are combined in a single
course of conduct, a sufficiently-important
governmental interest in regulating the non-speech element can justify an incidental limitation on First Amendment freedoms. To qualify for this more lenient standard, the state has to assert an interest unrelated to the
suppression of expression. Texas asserted two possible interests to justify Johnson’s punishment. First, flag burning caused
breaches of the peace. Second, Texas wanted to preserve the flag as a symbol of national unity. The first interest wasn’t
implicated in Johnson’s case. Texas admitted that no actual
breach of the peace occurred. The second interest was directly related to Johnson’s political message, and therefore didn’t qualify
for the more lenient standard. Because the restriction
on Johnson’s speech was content-based, the court subjected
Texas’s asserted interest to the most exacting
constitutional scrutiny. Under that scrutiny, the state’s interest in preserving the flag as
a symbol of national unity didn’t justify Johnson’s punishment. The court didn’t object to Texas’s goal, only its means. Preserving the flag as a
symbol of national unity was a legitimate state interest that could support laws regulating how the flag may be displayed, but it couldn’t justify
criminal punishment for burning the flag. The ideal way to preserve the
flag’s special role in society was not by punishing those
who expressed contrary views, but by attempting to persuade
them with further dialogue. Therefore, the court affirmed the judgment of the Texas Court of Criminal Appeals, holding that the First Amendment
barred criminal punishment for burning the American flag in protest. Justice Kennedy concurred, opining that while he found
flag burning distasteful, the facts and applicable law compelled the majority’s result. Chief Justice Rehnquist, joined by Justices White
and O’Connor, dissented. Rehnquist argued that Johnson had many ways of making his point, and that Texas law
criminalized just one of them. Johnson remained free
to express his viewpoint in a myriad of ways. For Rehnquist, flag burning
was a form of fighting words, which is speech that
inflicts direct injury or incites an immediate
breach of the peace. Any expressive benefit
derived from flag burning was clearly outweighed
by the public interest in maintaining peace and order. Rehnquist also pointed out that 48 states and the federal government
agreed with this reasoning, as they had statutes
prohibiting flag burning on their books, too. Justice Stevens also dissented, reasoning that Johnson wasn’t
prosecuted for his message, but for the method he used to convey it. Permitting flag burning
tarnishes the flag’s value. In contrast, criminalizing flag burning was only a trivial burden on free speech, particularly in light of
the many alternative methods one has for communicating political ideas. Texas versus Johnson remains
a source of deep disagreement. In 2006, Congress tried
to amend the Constitution to prohibit flag burning, and fell short by only one vote.


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