In Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), the U.S. Supreme Court was asked to review the constitutionality of a Texas statute prohibiting the desecration of certain venerated objects, including state and national flags. The defendant was convicted under the statute for burning the U.S. flag during a political demonstration. In striking down the statute, the Supreme Court ruled that flag burning is SYMBOLIC SPEECH protected by the Free Speech Clause of the FIRST AMENDMENT to the U.S. Constitution. The case splintered the nine Supreme Court justices, much as the issue of flag burning splintered the rest of the nation.
The case stemmed from an incident during the 1984 Republican National Convention in Dallas, Texas. Outside the convention center a group of demonstrators marched through the streets to protest the policies of President RONALD REAGAN. Several demonstrators distributed literature, shouted slogans, and made speeches. One demonstrator, Gregory Lee Johnson, unfurled a U.S. flag, doused it with kerosene, and set it on fire. While the flag burned, several protestors chanted: "America, the red, white, and blue, we spit on you." Several bystanders were offended by the flag burning, and one took the flag's remains home to his backyard where he buried them. No violence or altercations took place at any time during the demonstration, however.
Johnson was convicted of desecrating a venerated object in violation of Texas Penal Code section 42.09(a)(3) (1989). He was sentenced to one year in prison and fined $2,000. His conviction was affirmed by the Fifth District Court of Appeals in Dallas. Johnson's case was then reviewed by the Texas Court of Criminal Appeals, which reversed his conviction, holding that the state could not punish Johnson for burning the U.S. flag under these circumstances (Johnson v. State, 755 S.W.2d 92 [Tex. Crim. App. 1988]). The Free Speech Clause, the court ruled, forbids the government from establishing an orthodox symbol of national unity that is insulated from public criticism, symbolic or otherwise.
In a 5?4 decision the U.S. Supreme Court affirmed the holding of the Texas Court of Criminal Appeals. Joined by Justices THURGOOD MARSHALL, HARRY A. BLACKMUN, ANTONIN SCALIA, and ANTHONY KENNEDY, Justice WILLIAM J. BRENNAN JR. wrote the majority opinion for the Court. Chief Justice WILLIAM H. REHNQUIST, joined by Justices SANDRA DAY O'CONNOR, BYRON WHITE, and JOHN PAUL STEVENS, wrote the dissenting opinion. The majority opinion was divided into two parts.
First, the Court ruled that flag burning is expressive conduct for First Amendment purposes. The Court noted that the defendant's method of protest was not confined...