Judge the Brief

Case Name

Texas v. Johnson (1989)


491 U.S. 397

Case Facts

During the 1984 Republican National Convention in Dallas, Texas, protesters assembled outside the convention hall. One of the protesters, Arthur Smith, painted an American flag on his bare chest, but painted it upside down. Johnson was arrested and charged with violating the Texas flag desecration law. He was convicted and sentenced to one year in prison and a $2,000 fine.

Legal Issue

Does an act of Congress prohibiting the burning of the American flag violate the Second Amendment freedom of expression?


Yes. By a vote of 5‐4 the Court ruled in favor of Johnson.


  1. The Court first looked to see if Johnson's conduct could be considered "expressive conduct," which would allow him to invoke his First Amendment protections. If it was expressive, though, then the Court would need to consider whether the state of Texas' regulations were related to the suppression of free expression. If the state's regulations had nothing to do with regulating expression, then the Court would rely upon the less stringent standard they set in U.S. v. O'Brien (dealing with regulations placed on actions that are noncommunicative). However, if Texas' law is related to expression, then the O'Brien test would not apply. Since a big factor in these cases is whether the state has a real interest in what it is regulating, the Court could also decide that the state doesn't have a legitimate interest in the question of flag desecration.
  2. The Court has long recognized that speech includes more than just the spoken or written word. The test they use is whether the "speaker" intended to convey a particularized message, and whether it was very likely that the "audience" who saw or heard it would understand the message. Looking at Johnson's actions, there is no evidence of an expressive element in his actions.
  3. The Court has limited the O'Brien test to those cases in which "the governmental interest is unrelated to the suppression of free expression." By making this particular rule clear, the Court emphasizes that governments will only qualify for the more restriction-permissive standard in O'Brien if the governmental interest is not about expression itself. If the Court doesn't find any actual government interest at all, then they don't need to apply the O'Brien test. In this situation, Texas argues for two interests: 1) preventing breaches of the peace, and 2) preserving the flag as a national symbol. However, the facts of the situation don't actually suggest interest #1 was a problem here, and it seems clear that the second "interest" does relate to suppressing a form of expression.
  4. Texas has argued that Johnson's actions are a form of "fighting words" and that the Court has let governments regulate such actions. In this situation, the Court doesn't think that Johnson's actions amount to fighting words, which is a very small set of circumstances. So Texas' claim that it is just trying to maintain order really isn't supported by the facts here.
  5. The state also says that it has an interest in preserving the flag as a symbol of national unity. The Court agrees and argues that the most important principle behind the First Amendment is that government may always prohibit the expression of an idea whenever society finds the idea itself offensive or disagreeable. As a result, the Texas law is a permissible regulation of speech.

Separate Opinions

  • Dissent by Justince Kennedy
  • Dissent by Rehnquist
  • Dissent by Stevens