Street Law, Inc. and The Supreme Court Historical Society present

Landmark Cases of the U.S. Supreme Court

Street Law /

Background summary & questions (••)

Gregory Lee Johnson participated in a political demonstration during the Republican National Convention in Dallas, Texas, in 1984. The demonstrators were protesting the policies of the Reagan Administration and of certain companies based in Dallas. They marched through the streets, shouted slogans, and held protests outside the offices of several companies. At one point, another demonstrator handed Johnson an American flag.

When the demonstrators reached Dallas City Hall, Johnson poured kerosene on the flag and set it on fire. During the burning of the flag, demonstrators shouted "America, the red, white, and blue, we spit on you." No one was hurt, but some witnesses to the flag burning said they were extremely offended. One witness picked up the flag's burned remains and buried them in his backyard.

Johnson was charged with violating the Texas law that prohibits vandalizing respected objects. He was convicted, sentenced to one year in prison, and fined $2,000. He appealed his conviction to the Court of Appeals for the Fifth District of Texas, but he lost this appeal. He then took his case to the Texas Court of Criminal Appeals, which is the highest court in Texas that hears criminal cases. That court overturned his conviction, saying that the State could not punish Johnson for burning the flag because the First Amendment protects such activity as symbolic speech.

The State had said that its interests were more important than Johnson's symbolic speech rights because it wanted to preserve the flag as a symbol of national unity, and because it wanted to maintain order. The court said neither of these state interests could be used to justify Johnson's conviction.

The court said, "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol . . ." The court also concluded that the flag burning in this case did not cause or threaten to cause a breach of the peace.

The State of Texas asked the Supreme Court of the United States to hear the case. In 1989, the Court handed down its decision.

Questions to Consider
  1. Read the First Amendment to the U.S. Constitution. What part of the Amendment is relevant to this case?
  2. What do you think is meant by "symbolic speech"? What are some other examples?
  3. What argument could you make that flag burning is likely to cause violence and therefore should be against the law?
  4. What argument could you make that flag burning is symbolic speech that should be protected by the First Amendment?
  5. How should the Supreme Court of the United States decide this case? Why?

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