After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law.
The State’s interest in preserving the flag as a symbol of nationhood and national unity does not justify convicting a person for burning a flag.
While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration to protest the policies of the Regan administration. The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene and set it one fire. While the flag burned, the protestors chanted, “America, the red, white and blue, we spit on you.” No one was physically injured or threatened with injury. Johnson was charged with a crime for desecration of a venerated object in violation of the Texas law.
Does the Texas law that criminalizes and convicts individuals for publicly burning an American flag as a means of political protest violate the Constitution?
Yes, Johnson was convicted for engaging in expressive conduct. The State’s interest in preventing breaches of the peace does not support his conviction because Johnson’s conduct did not threaten to disturb the peace. Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression.
The public burning of the American flag by Johnson was no essential part of any exposition of ideas, and it had a tendency to incite a breach of the peace. Johnson was free to make any verbal denunciation of the flag that he wished. Indeed, he was free to burn the flag in private. He could publicly burn other symbols of the Government of effigies of political leaders. Flag burning is the equivalent of an inarticulate grunt or roar that is most likely to be indulged in not to express any particular idea, but to antagonize others.
That the Government may not prohibit expression simply because it disagrees with its message is not dependent on the particular mode in which one chooses to express an idea. If the Court were to hold that a State may forbid flag-burning whenever it is likely to endanger the flag’s symbolic role, but allow it whenever burning a flag promotes that role, the Court would be saying that when it comes to impairing the flag’s physical integrity, the flag itself may be used as a symbol only in one direction. The Court has never before held that the Government may ensure that a symbol be used to express only one view of that symbol or its referents. The Court invalidated a federal statute permitting an actor portraying a member of one of our armed forces to wear the uniform of that armed force if they portrayal does not tend to discredit that armed force. This proviso, which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment.