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Texas v. Johnson

    Citation. 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342, 1989 U.S.

    Brief Fact Summary. A conviction for burning the United States flag based on a Texas law was overturned after the Supreme Court of the United States (Supreme Court) found that the Texas law was unconstitutional.

    Synopsis of Rule of Law. The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. It is not simply the verbal or nonverbal nature of the expression, but the governmental interest at stake, that helps to determine whether a restriction on that expression is valid.


    Facts. After publicly burning the American flag, the Defendant, Gregory Lee Johnson (Defendant), was convicted of desecrating a flag in violation of Texas law. The Court of Criminal Appeals overturned the conviction.

    Issue. Whether Defendant’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment of the United States Constitution (Constitution)?

    Whether the state’s interest in preserving the flag as a symbol of nationhood justifies Defendant’s conviction?

    Held. Yes. Judgment of the Court of Criminal Appeals affirmed. The very purpose of a national flag is to serve as a symbol of our country. Pregnant with expressive content, the flag as readily signifies this nation as does the combination of letters found in “America.” Texas conceded that Defendant’s conduct was expressive conduct. He burned the flag as part of a political demonstration. Therefore, Defendant’s burning of the flag constituted expressive conduct thereby permitting him to invoke the First Amendment of the Constitution.

    No. Judgment of the Court of Criminal Appeals affirmed. The state’s restriction on Defendant’s expression is content-based. Therefore, the state’s asserted interest in preserving the special symbolic character of the flag must be subjected to the “most exacting scrutiny.” To say that the Government has an interest in encouraging proper treatment of the flag is not to say that it may criminally punish a person for burning the flag as a means of political protest. Therefore, the state’s interest in preserving the flag as a symbol of nationhood does not justify Defendant’s conviction because it is not consistent with the First Amendment of the Constitution.

    Dissent. It was for Defendant’s use of this symbol, not the idea that he sought to convey for which he was convicted.  The interest of preserving the flag as a symbol of nationhood is legitimate and justified the Defendant’s conviction.

    Discussion. This case resulted in battle lines being drawn between those in Congress who wanted to amend the Constitution to permit restraints on flag desecration and those who supported new legislation rather than constitutional amendment.


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