In 1984, in front of the Dallas City Hall, Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration.
The desecration of an American flag is symbolic speech protected by the First Amendment.
While the Republic National Convention was taking place in Dallas in 1984, Johnson participated in a political demonstration protesting against Reagan administration policies. While standing in front of Dallas City Hall, Johnson unfurled the American flag, doused it with kerosene, and set it on fire. As the flag burned, protestors chanted “America, the red, white, and blue, we spit on you.” There were no physical injuries or threats of injury, though several witnesses testified that they were seriously offended by the flag burning. Johnson was subsequently convicted of desecrating a flag in violation of a Texas law outlawing flag desecration. Johnson was sentenced to one year in jail and assessed a $2,000 fine.
Is the desecration of an American flag, by burning or otherwise, a form of protected speech under the First Amendment?
Yes, the desecration of an American flag is protected under the First Amendment.
The Texas law left Johnson with a wide range of other symbols and forms of expression to express his deep disapproval of national policy. It was Johnson’s use of this particular symbol, not the idea that he sought to convey, for which he was punished. Under this ruling, the government may draft men into the Armed Forces where they must fight and perhaps die for the flag; however, the government may not prohibit the public burning of the same flag. The Texas statute should be upheld as applied in this case.
The value of the American flag as a symbol cannot be measured and the interest in preserving that value for the future is significant, given the flag’s unique status as a symbol of national unity. This interest outweighs other speech concerns. Thus, the flag is worthy of protection from unnecessary desecration.
Johnson’s burning of a flag is protected expressive conduct known as symbolic speech, under the First Amendment. Texas claims that its interest in preventing breaches of the peace justifies Johnson’s conviction for flag desecration. However, no disturbance of the peace actually occurred or was threatened to occur, simply because of Johnson’s flag burning. Further, Johnson’s expressive conduct does not fall within the category of “fighting words,” or that which is likely to provoke the average person to retaliation because no reasonable onlooker would’ve regarded Johnson’s generalized expression of dissatisfaction with the policies of the federal government as a direct personal insult or an invitation to a physical fight. This holding is in accordance with the bedrock principle underlying the First Amendment, that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable.