Legal Definitions - Texas v. Johnson (1989)

Texas v. Johnson (1989) is a landmark U.S. Supreme Court case that established that burning the American flag as a form of political protest is protected speech under the First Amendment of the U.S. Constitution.

The Court ruled that state laws criminalizing flag burning violate an individual's right to freedom of speech because such acts are considered "expressive conduct." This means that even though no words are spoken, the act itself conveys a particular message or idea. The Court emphasized that the government cannot prohibit the expression of an idea simply because society finds the idea itself, or the means by which it is expressed, offensive or disagreeable. Therefore, states cannot ban flag burning, even if done in a way that many people find disrespectful, if the intent is to communicate a political message.

Here are some examples illustrating the principles established in Texas v. Johnson:

• Example 1: Political Rally Protest

  During a public demonstration against a new federal policy on healthcare, a protester stands on a street corner and sets fire to a small American flag. The protester intends this act to symbolize their belief that the government's policy is "destroying" the country's values. Local police attempt to arrest the individual under a state law prohibiting flag desecration.

  How it illustrates Texas v. Johnson: Under the precedent set by Texas v. Johnson, the protester's act of burning the flag, even if offensive to many, is considered expressive conduct intended to convey a political message. The state law criminalizing flag desecration would be unconstitutional as applied to this situation, as it infringes upon the protester's First Amendment right to free speech.

• Example 2: Artistic Statement

  An artist creates a performance piece for a gallery opening where, as part of a commentary on consumerism and national identity, they slowly burn a flag made of dollar bills while reciting a poem about economic inequality. The local authorities receive complaints and consider charging the artist with a crime under a municipal ordinance against "vandalism of national symbols."

  How it illustrates Texas v. Johnson: The artist's performance, involving the burning of a flag, is a form of symbolic speech intended to convey a critical message about societal issues. Even though it's an artistic context rather than a direct political rally, the act is still expressive conduct. Texas v. Johnson protects this form of expression, meaning the municipal ordinance cannot be used to prosecute the artist for this act, as it would violate their First Amendment rights.

• Example 3: Challenging a Local Ordinance

  A small town, in an effort to promote patriotism, passes a new ordinance making it illegal to "damage or deface any representation of the United States flag." A resident, upset about local tax increases, burns a worn-out flag in their backyard as a personal act of protest. They are subsequently cited by a code enforcement officer under the new ordinance.

  How it illustrates Texas v. Johnson: The town's ordinance, which broadly prohibits damaging or defacing the flag, would be unconstitutional under the principles of Texas v. Johnson. The Supreme Court's ruling makes it clear that governments cannot prohibit expressive conduct related to the flag, even if their stated interest is to preserve the flag as a symbol of national unity. The resident's act, even if private, is a form of protest, and the ordinance directly infringes on their protected speech.