Facts
- During the 1984 Republican National Convention in Dallas, Gregory Lee Johnson participated in a political demonstration protesting government policies.
- At the end of the demonstration, Johnson burned an American flag outside Dallas City Hall while demonstrators chanted political slogans.
- No one was physically harmed or threatened, though some observers were seriously offended.
- Texas charged Johnson under Texas Penal Code § 42.09(a)(3), which prohibited desecration of a “venerated object,” including the U.S. flag, when the actor knew the act would seriously offend observers.
- Johnson was convicted, sentenced to one year in jail, and fined $2,000.
- The Texas Court of Criminal Appeals reversed and ordered dismissal, holding the statute unconstitutional as applied to Johnson’s expressive conduct.
Issues
- Whether burning the American flag during a political demonstration constitutes expressive conduct protected by the First Amendment.
- Whether Texas may criminally punish flag desecration based on preventing breaches of the peace or preserving the flag’s symbolic value.
- Whether a statute that punishes flag mistreatment because it seriously offends observers impermissibly targets the communicative impact of expression.
Decision
-
The Supreme Court affirmed the judgment of the Texas Court of Criminal Appeals (5–4) and held Johnson’s conviction unconstitutional.
-
The Court held that Johnson’s flag burning, in context, was expressive conduct within the First Amendment.
-
Texas’s asserted interests did not justify the conviction:
- Preventing breaches of the peace was not supported by the record because no disturbance occurred.
- Preserving the flag as a symbol of national unity was tied to suppressing the message conveyed by disrespectful treatment.
-
Because the statute’s application turned on whether observers would be seriously offended, it operated as content- and viewpoint-based punishment of expression.
Legal Principles
- Conduct is protected by the First Amendment when it is sufficiently communicative in context and is intended and understood as political expression.
- Government may not prohibit expression because it is offensive or disagreeable; offense to viewers is not a valid basis for suppression of speech.
- Regulations directed at the communicative impact of expression, including laws that punish only disrespectful treatment of a symbol while allowing respectful uses, are generally unconstitutional as viewpoint discrimination.
- A hostile audience reaction, without evidence of an actual or imminent disturbance, does not justify suppressing protected expression.
Conclusion
The Court held that burning the American flag as part of a political protest is protected expressive conduct and that Texas could not criminalize the act based on its offensiveness or on a desire to preserve the flag’s symbolic meaning when the law functioned as content- and viewpoint-based suppression of expression.