Background
Summary and Questions
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Gregory Lee Johnson
participated in a political demonstration during the
Republican National Convention in Dallas, Texas, in 1984. The
purpose of the demonstration was to protest policies of the
Reagan Administration and of certain corporations based in
Dallas. Demonstrators marched through the streets, chanted
slogans, and held protests outside the offices of several
corporations. At one point, another demonstrator handed
Johnson an American flag.
When the demonstrators
reached Dallas City Hall, Johnson doused the flag with
kerosene and set it on fire. During the burning of the flag,
the demonstrators shouted, "America, the red, white, and blue,
we spit on you." No one was hurt or threatened with injury,
but some witnesses to the flag burning said they were
seriously offended. One witness picked up the flag's charred
remains and buried them in his backyard.
Johnson was charged with the desecration of a venerated
object, in violation of the Texas Penal Code. He was
convicted, sentenced to one year in prison, and fined
$2,000. He appealed his conviction to the Court of Appeals
for the Fifth District of Texas, which let his conviction
stand. He then appealed to the Texas Court of Criminal
Appeals, which is the highest court in Texas that hears
criminal cases. That court overturned his conviction
saying that the State, consistent with the First Amendment,
could not punish Johnson for burning the flag in these
circumstances.
The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. Therefore in order for a state to criminalize or regulate such conduct it would have to serve a compelling state interest that would outweigh the protection of the First Amendment. The court concluded that criminally sanctioning flag desecration in order to preserve the flag as a symbol of national unity was not a compelling enough interest to survive the constitutional challenge. It also held that while preventing breaches of the peace qualified as a compelling state interest the statute was not drawn narrowly enough to only punish those flag burnings that would likely result in a serious disturbance. Further, it stressed that another Texas statute prohibited breaches of the peace and could serve the same purpose of preventing disturbances without punishing this flag desecration.
The court said, "Recognizing that the right
to differ is the centerpiece of our First Amendment freedoms .
. . a government cannot mandate by fiat a feeling of unity in
its citizens. Therefore that very same government cannot carve
out a symbol of unity and prescribe a set of approved messages
to be associated with that symbol. . . . " The court also
concluded that the flag burning in this case did not cause or
threaten to cause a breach of the peace.
The State of
Texas filed a petition for a writ of certiorari and, in 1988,
the Supreme Court of the United States agreed to hear the
case. In 1989, the Court handed down its
decision.
Questions to
Consider:
- Read the First Amendment to
the U.S. Constitution. What part of the Amendment is relevant
to this case?
- What do you think is meant by "symbolic speech"? What
are some other examples?
- What argument could you make that flag burning threatens
to cause violence and therefore should be against the
law?
- What arguments could you make that the First Amendment
should protect flag burning?
- How should the Supreme Court of the United States decide
this case? Why?
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