Case Brief

Jeguiris Burgos

Professor Debra Stephans

Law1100

Texas v. Johnson

Texas vs. Johnson, 491 U.S. 397, (1989)

Facts: Gregory Lee Johnson was convicted by the State of Texas after publicly burning an

American flag outside of the convention center where the 1984 Republican National

Convention was being held in Dallas, Texas. Johnson was protesting policies of President

Reagans’ Administration. Johnson was the only person tried and convicted with a sentence of

one-year imprisonment and a fine of $2,000. Johnson challenged his conviction in the state

court, arguing that his First Amendment was violated. Texas Court of Criminal Appeals

reversed the conviction and overruled the Fifth District of Texas and sentenced him.

Certiorari was granted. 488 U.S. 907 (1988).

Rule: The First Amendment protects all expressive speech.

Issue: Whether the burning of an American flag is a form of “freedom of speech” which is

protected under the First Amendment in the Constitution?

Holding: Yes. The burning of the American flag was used as a symbol to express political

beliefs and is a form of “freedom of speech” protected under the First Amendment.

Reasons: Majority of the court agreed with Johnson that the burning of the flag is protected

under the First Amendment because the act was a form of “symbolic speech”. The majority

of the court also noted that The Texas law could not discriminate and punish actions like

burning of the flag just because it angered and offended others.

Criticism: The American flag is the United States. It is the most symbolic item that we have

in our country. When Johnson was granted certiorari, I agreed with the Texas Court of

Criminal Appeals. If the way we express our freedom of speech is done peacefully even if it

is offensive to others, why would the government feel the need to restrain that right? Johnson

did not threaten to disturb the peace when he burned the American flag. Johnson wanted to

express his disapproval of the proposed policies publicly by burning the flag. Justice Stevens

dissented against the majority stating “For more than 200 years, the American flag has

occupied a unique position as the symbol of our Nation, a uniqueness that justifies a

governmental prohibition against flag burning in the way respondent Johnson did here.”

Justice Stevens also disagreed with the majority and stated that national unity outweighed

“symbolic speech” and that burning of the American flag can be lawfully prohibited. I do

agree with Justice Stevens to an extent. A more specific line does need to be drawn as to how

free our speech is. As of now, the First Amendment is very broad, maybe too broad.