Texas v. Johnson, 1989

Diego Ortiz-Monasterio

Historical Context of the Case

This case took place during the Reagan administration and more importantly during the superpower arms race between the United States and Russia. This was an extension of the Cold War that led the United States and Russia to stockpile nuclear warheads. There were plenty of groups at the time that had problems with Reagan’s foreign policy. This is because of the tough, “mutually assured destruction” stance that it had regarding Russia. In this case the respondent was taking part in a demonstration organized by the “Republic War Chest Tour”.  These demonstrations were not uncommon and even more popular during the years of the Reagan's administration because of actions in Afghanistan, Iran, and Central America. 

Relevant Precedent 

In 1968, the Supreme Court decided on United States v. O'Brien. This case is relevant because it also involves burning something patriotic. In this case David O’Brien and three friends decided to burn their selective service cards in front of a court house in order to protest the Vietnam War. This was illegal because of a Federal Statue that prohibited the destruction or mutilation of a Selective Service card. The Supreme Court ruled 7-1 to uphold the federal law. The Supreme Court’s argument was that not anything you do to express yourself can be labeled as “speech” and therefore there are some conducts that are just not suitable in public. The Supreme Court also argued that these cards were integral to the power of the government in maintaining the army in good shape. Essentially the First Amendment does not apply to any kind of expression and if the expression will hassle how the government works then it has the right to enact law to protect itself.

In 1969, the Supreme Court ruled on Tinker v. Des Moines Independent Community School Dist. This case also dealt with the issue of First Amendment rights. The case pertained to a teenager, John F. Tinker, who decided to wear a black armband symbolizing his disagreement with the Vietnam War. This was found as offensive by the school and Tinker was asked to take it off. Tinker did not and he was suspended from school. When this got to the Supreme Court the Court decided in a 7-2 decision that the First Amendment applied to Public Schools. In the majority opinion Justice Abe Fortas wrote “based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation's part in the conflagration in Vietnam,". Basically people cannot be censored just because what they say is going to be controversial. 

Another case that was argued on the basis of the First Amendment was Schacht v. United States. This case was decided in 1970. In this case an actor was wearing a real military uniform and negatively portrayed the military. The Supreme Court argued that the actor could wear a military uniform even if he was negatively portraying the military; this decision was in the same vein as Tinker v. Des Moines. 

In Stromberg v. California the Supreme Court took on a case that, who would have known, had to do with First Amendment Rights. This case was brought to the Supreme Court to decide if the 1919 California Red Flag Law was unconstitutional. This law banned red flags because of the communist implications. The Supreme Court decided that this law was unconstitutional because it infringed upon the Appellant's First Amendment Rights. 

Story behind Texas v. Johnson: 

In 1984, during a protest against the Reagan Administration in Dallas Mr. Gregory Lee Johnson burned an American Flag. Dallas policemen arrested Mr. Johnson on the grounds that he was violating Texas law. This law outlawed the desecration of the Flag of the United States. Mr. Johnson was sentenced to one year in jail and was fined 2,000$. The Texas Court of Criminal Appeals then overturned the conviction and after that the case went all the way to the Supreme Court. 

Composition of Court in 1989: 

The Supreme Court at the time was the Rehnquist Court. The Chief Justice at the time, William Rehnquist was appointed by President Reagan. It is interesting to note that this case involved President Reagan because it was he who Mr. Johnson was protesting against. The other justices presiding over the case included Mr. Brennan, Mr. White, Mr. Marshall, Mr. Blackmun, Mr. Stevens, Ms. O’Connor, Mr. Scalia, and Mr. Kennedy. This Rehnquist court had two contradicting ideals. On one hand the Court favored a system of Federalism in which the States would create their own laws. On the other hand the Court did not want to increase the power of the government. 

Constitutional Question as defined by the Supreme Court: 

Initially the Court wanted to ask if the First Amendment covered acts and not just speech. However, the Court decided that there was already precedent set in Stromberg v. California and Tinker v. Des Moines that effectively concluded that the First Amendment did indeed cover non-speech acts. After that the court asked what would be covered by the First Amendment, the Court decided that “an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."[1]. So again the Court changed its question. Ultimately the Court’s question arose from the Appellants argument that "whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression." 

Decision and Ramification: 

As stated earlier the Court started its opinion by stating that they were not sure if the First Amendment. The Court then affirmed that because of the relevant precedent that not just speech was covered by the First Amendment but also actions. The Court then started to argue whether Texas had the power to outlaw the burning of flags. The Court addressed two of the Appellants arguments. The first thing that Texas argued was that the state had the right to preserve a venerated national symbol. The second argument was that the state had the right to prevent breaches of peace. The Supreme Court agreed that Texas’ second argument had no substance because it might in some cases breach the peace, something that had already been decided on in Brandenburg v. Ohio. The Court held that by not banning the burning of flags then it would in turn reinforce the symbolic power of it. In the majority opinion Justice Brennan wrote “We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag -- and it is that resilience that we reassert today.”[2] There was an interesting concurring opinion in which Justice Kennedy essentially said that it was very hard for him to actually vote against the American Flag but that he was doing it because it reinforced everything the Flag stood for. His exact words were “For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”[3] The Supreme Court decision effectively deemed the Flag Burning Laws among 48 States to be unconstitutional. This case has also been used as precedent for later Flag Burning Supreme Court cases.

[3] http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/texasvjohnson.html