Texas v. Johnson

The ruling was unpopular with the general public and lawmakers, with President George H. W. Bush calling flag burning "dead wrong".

"[4] On August 22, 1984, Gregory Lee Johnson, then a member of the Revolutionary Communist Youth Brigade, participated in a political demonstration during the 1984 Republican National Convention in Dallas, protesting the policies of the Reagan administration.

[5] The protestors marched through the streets, chanting political slogans and staging "die-ins" at several corporate buildings to dramatize the effects of nuclear war.

[9] One spectator, a Korean War veteran named Daniel Walker, gathered the remains of the flags and buried them in the backyard of his home in Fort Worth.

On December 13, 1984, a six-person jury found Johnson guilty of flag desecration, and he was subsequently sentenced to one year in jail and fined $2,000.

[15] The court found that Johnson's actions were symbolic speech protected by the First Amendment, writing that, "a government cannot mandate by fiat a feeling of unity in its citizens.

"[23] The Court found, based on Spence, that Johnson's burning of the flag "constituted expressive conduct, permitting him to invoke the First Amendment.

"[27][28] Brennan wrote that the political nature of the flag burning was "both intentional and overwhelmingly apparent",[29] having coincided with the Republican National Convention.

Citing Brandenburg v. Ohio (1969), Brennan wrote that the state may only punish speech that would incite "imminent lawless action", and rejected that flag burning constituted such.

In it, Kennedy acknowledged the potentially unpopular nature of the holding, but affirmed that the role of the Supreme Court is to uphold the integrity of the Constitution, even if "sometimes we must make decisions we do not like.

"[33] Kennedy continued: I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.

With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce.

Rehnquist invoked several previous rulings by the Court that showed a recognition of the flag as a unique national symbol, including Halter v. Nebraska (1907).

Rehnquist quoted Justice John Marshall Harlan's majority opinion in writing: "For that flag every true American has not simply an appreciation, but a deep affection.

Conceivably, that value will be enhanced by the Court's conclusion that our national commitment to free expression is so strong that even the United States, as ultimate guarantor of that freedom, is without power to prohibit the desecration of its unique symbol.

[42]Stevens compared public desecration of the flag to posting bulletin boards on the Washington Monument, writing that such behavior "might enlarge the market for free expression, but at a cost I would not pay".

[44] Legal scholar Geoffrey R. Stone remarked that the ruling was "wildly unpopular" with the American people,[45] and Newsweek described a sense of "stunned outrage" across the country.

[46] In a nationwide public opinion poll taken shortly after the ruling, 75 percent of respondents disagreed with the decision,[47] and nearly two-thirds supported the idea of a constitutional amendment to protect the flag.

[50] At a rally to raise support for the Flag Desecration Amendment, Senator Bob Dole (R-KS) said: "Americans may not know every nuance of Constitutional law.

[60] The Court's ruling invalidated laws against desecrating the American flag, which at the time were enforced in every state except Alaska and Wyoming.

[61] On June 22, 1989, one day after the ruling, the 101st Congress of the Senate passed a resolution to express "profound disappointment" in the Court's decision, by a vote of 97-3.

[65] On June 30, Bush spoke before a crowd at the Iwo Jima Memorial in Washington, D.C. to express his distaste for the Court's decision, urging Congress to act quickly.

[72] In United States v. Eichman (1990), the Court once again upheld that flag burning was protected speech under the First Amendment, with the same five justices in Johnson forming the majority.

[79] On July 20, 2016, Gregory Lee Johnson was again arrested for burning the American flag during the Republican National Convention, which was being held in Cleveland, Ohio.

Johnson (right) with attorney Kunstler, c. 1989
William J. Brennan, Jr. wrote for the Court's majority.
Protestors burn the American flag during the Ferguson unrest , 2014