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TEXAS v. JOHNSON


No. 88-155


SUPREME COURT OF THE UNITED STATES


491 U.S. 397; 109 S. Ct. 2533; 105 L. Ed. 2d 342; 1989 U.S. LEXIS 3115; 57 U.S.L.W. 4770

March 21, 1989, Argued


June 21, 1989, Decided


PRIOR HISTORY: CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS.

DISPOSITION: 755 S. W. 2d 92, affirmed.

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CASE SUMMARY


PROCEDURAL POSTURE: Petitioner State requested a writ of certiorari to examine a decision of the Court of Criminal Appeals of Texas, which reversed the trial court's decision that convicted respondent of desecrating a flag in violation of Tex. Penal Code Ann. § 42.09(a)(3) (1989) after he publicly burned an American flag as a means of political protest.




OVERVIEW: Respondent participated in a political demonstration where he doused the American flag with kerosene and set it on fire. Respondent was charged and convicted of desecration of the flag. The court of criminal appeals reversed the conviction and held that petitioner could not punish respondent for burning the flag as a part of political speech. Petitioner sought a writ of certiorari to determine whether the conviction was consistent with U.S. Const. amend. I. The Supreme Court found that it was not. The Court held that petitioner's interest in preventing breaches of the peace did not support respondent's conviction because his conduct did not threaten to disturb the peace. Additionally, petitioner's interest in preserving the flag as a symbol of nationhood did not justify the criminal conviction for engaging in political expression. The Supreme Court affirmed the decision of the court of criminal appeals.




OUTCOME: The Supreme Court affirmed the court of criminal appeals' decision when the Court found that petitioner's interest in preventing breaches of the peace did not support respondent's conviction because his conduct did not threaten to disturb peace; petitioner's interest in preserving the flag as a symbol of nationhood did not justify a criminal conviction for engaging in political expression.

CORE TERMS: flag, burning, symbol, desecration, expressive, message, national unity, preserving, symbolic, convicted, nationhood, conveyed, burned, protest, convey, serious offense, street, punish, star, suppression, publicly, free expression, dissatisfaction, communicative, criminally, implicated, prosecuted, offended, audience, fighting


LexisNexis® Headnotes Hide Headnotes

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom



HN1go to the description of this headnote.

U.S. Const. amend. I literally forbids the abridgment only of speech, but it has long been recognized that its protection does not end at the spoken or written word. While the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea has been rejected it has been acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Expressive Conduct


Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

HN2go to the description of this headnote.

In deciding whether particular conduct possesses sufficient communicative elements to bring U.S. Const. amend. I into play, the Supreme Court has asked whether 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.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Expressive Conduct


Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

HN3go to the description of this headnote.

Attaching a peace sign to the flag; refusing to salute the flag, and displaying a red flag all may find shelter under U.S. Const. amend. I.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom



HN4go to the description of this headnote.

The flag salute is a form of utterance.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom



HN5go to the description of this headnote.

The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. What might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Expressive Conduct


Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

HN6go to the description of this headnote.

Although the Supreme Court has recognized that where speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on freedoms under U.S. Const. amend. I, the Court has limited the applicability of United States v. O'Brien's relatively lenient standard to those cases in which the governmental interest is unrelated to the suppression of free expression.. In stating, moreover, that O'Brien's test in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions, the Court has highlighted the requirement that the governmental interest in question be unconnected to expression in order to come under O'Brien's less demanding rule.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom


Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Disruptive Conduct > Disorderly Conduct & Disturbing the Peace > General Overview

HN7go to the description of this headnote.

A principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Fighting Words


Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Flag Desecration > General Overview
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Riot, Rout & Unlawful Assembly > Elements

HN8go to the description of this headnote.

The government has not been permitted to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Fighting Words


Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Flag Desecration > General Overview

HN9go to the description of this headnote.

See 36 U.S.C.S. § 176(k).

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Fighting Words



HN10go to the description of this headnote.

The emotive impact of speech on its audience is not a secondary effect unrelated to the content of the expression itself.

Constitutional Law > Equal Protection > Level of Review



HN11go to the description of this headnote.

The Supreme Court must subject a state's asserted interest in preserving the special symbolic character of the flag to the most exacting scrutiny.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Fighting Words


Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Obscenity

HN12go to the description of this headnote.

If there is a bedrock principle underlying U.S. Const. amend. I, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom



HN13go to the description of this headnote.

Nothing suggests that a state may foster its own view of the flag by prohibiting expressive conduct relating to it.

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom



HN14go to the description of this headnote.

The court declines to create for the flag an exception to the joust of principles protected by the First Amendment.

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DECISION: Conviction of protester for burning American flag as part of political demonstration held to violate Federal Constitution's First Amendment.

SUMMARY: While the 1984 Republican National Convention was taking place in Dallas, Texas, a group of people staged a political demonstration in Dallas to protest the policies of the President of the United States, who was being nominated by the Convention for re-election, and of certain Dallas-based corporations. During the course of that demonstration, one of the protesters (1) accepted an American flag handed to him by a fellow protester, who had taken the flag from a pole outside one of the targeted buildings, (2) doused the flag with kerosene, and (3) set the flag on fire. While the flag burned, the protesters chanted, "America, the red, white, and blue, we spit on you." The protester who allegedly had burned the flag was subsequently prosecuted in a Texas trial court for that act and was convicted of violating a state statute which (1) prohibited the desecration of, among other things, a state or national flag, and (2) defined desecration as the physical mistreatment of such objects in a way which the actor knows will seriously offend one or more persons likely to observe or discover the act. Several witnesses testified that they had been seriously offended by the flag burning. The defendant protester appealed his conviction on the ground, among others, that the application of the state statute violated his right to freedom of speech under the Federal Constitution's First Amendment. In affirming the conviction, the Court of Appeals for the Fifth District of Texas at Dallas ruled that the defendant protester's flag burning constituted symbolic speech requiring First Amendment scrutiny, but concluded that the desecration statute nevertheless could be upheld as a legitimate and constitutional means of (1) protecting the public peace, because acts of flag desecration are, of themselves, so inherently inflammatory that the state may act to prevent breaches of the peace, and (2) realizing the state's legitimate and substantial interest in protecting the flag as a symbol of national unity (706 SW2d 120). The Court of Criminal Appeals of Texas, however, held that the desecration statute as applied violated the defendant protester's First Amendment rights, because the statute (1) was too broad for First Amendment purposes as it related to breaches of the peace, and (2) was not adequately supported by the state's purported interest in preserving a symbol of unity; therefore, the court reversed the decisions below and remanded the case to the trial court with instructions to dismiss the information (755 SW2d 92).

On certiorari, the United States Supreme Court affirmed. In an opinion by Brennan, J., joined by Marshall, Blackmun, Scalia, and Kennedy, JJ., it was held that the conviction of the defendant protester was inconsistent with the First Amendment under the particular circumstances presented, because (1) the protester's conduct was sufficiently imbued with elements of communication to implicate the First Amendment, given that this flag burning was the culmination of a political demonstration and that the state conceded that the protester's conduct was expressive; (2) the state's interest in preventing breaches of the peace was not implicated on the record in this case, since (a) no disturbance of the peace actually occurred or threatened to occur because of the flag burning, (b) it cannot be presumed that an audience which takes serious offense at a particular expression is necessarily likely to disturb the peace, and (c) the flag burning does not fall within the small class of "fighting words" that are likely to provoke the average person to retaliation and thereby cause a breach of the peace; and (3) the state's asserted interest in preserving the flag as a symbol of nationhood and national unity does not justify the conviction, since (a) the attempted restriction on expression is content-based, and thus subject to the most exacting scrutiny, given that the flag-desecration statute is aimed not at protecting the physical integrity of the flag in all circumstances, but only against impairments that would cause serious offense to others, and is aimed at protecting onlookers from being offended by the ideas expressed by the prohibited activity, and (b) although the state has a legitimate interest in encouraging proper treatment of the flag, it may not foster its own view of the flag by prohibiting expressive conduct relating to it and by criminally punishing a person for burning the flag as a means of political protest.

Kennedy, J., concurred, expressing the view that the First Amendment compels the result reached in this case, regardless of how distasteful that result may be to the Justices who announce it, because the defendant protester's acts were speech in both the technical and the fundamental meaning of the Federal Constitution.

Rehnquist, Ch. J., joined by White and O'Connor, JJ., dissented, expressing the view that (1) the Texas statute is not invalid under the First Amendment as applied in this case, because (a) the American flag has come to be the visible symbol embodying our nation and is not simply another idea or point of view competing for recognition in the marketplace of ideas, and (b) the public burning of the American flag in this case was no essential part of any exposition of ideas and had a tendency to incite a breach of the peace, for flag burning is the equivalent of an inarticulate grunt or roar that is most likely to be indulged in not to express any particular idea, but to antagonize others, and the statute thus deprived the defendant protester of only one rather inarticulate symbolic form of protest--a form of protest that was profoundly offensive to many--and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy; and (2) the statute is not unconstitutionally vague or overbroad.

Stevens, J., dissented, expressing the view that (1) sanctioning the desecration of the flag will tarnish its value as a national symbol, a tarnish which is not justified by the trivial burden on free expression that is occasioned by requiring that alternative modes of expression be employed; (2) the flag-desecration statute does not prescribe orthodox views or compel any conduct or expression of respect for any idea or symbol; and (3) the defendant protester in this case was prosecuted not for his criticism of government policies, but for the method he chose to express those views, and a prohibition against that method is supported by a legitimate interest in preserving the quality of an important national asset.

LAWYERS' EDITION HEADNOTES:

 [***LEdHN1] 

CONSTITUTIONAL LAW §934

EVIDENCE §419

free speech -- flag burning -- provoking public disturbance -- presumption --

Headnote:

[1A][1B][1C][1D][1E][1F][1G][1H][1I]

The conviction of a protester for burning an American flag, in violation of a state statute which prohibits the desecration of the flag and which defines desecration as physical mistreatment which the actor knows will seriously offend one or more persons likely to observe or discover the action, is inconsistent with the free speech guarantee of the Federal Constitution's First Amendment under the particular circumstances presented, where (1) the protester's conduct is sufficiently imbued with elements of communication to implicate the First Amendment, given that this flag burning was the culmination of a political demonstration protesting the policies of a President of the United States who was then being nominated for re-election in the city where the demonstration occurred, and the policies of various corporations based in that city, and given that the state conceded that the protester's conduct was expressive; (2) the interest in preventing breaches of the peace, asserted by the state as justifying the individual's conviction, is not implicated on the record in this case, because (a) no disturbance of the peace actually occurred or threatened to occur because of the flag burning, (b) the only evidence as to onlookers' reactions was the testimony of several persons who were seriously offended by the flag burning, (c) it cannot be presumed that an audience which takes serious offense at a particular expression is necessarily likely to disturb the peace, and (d) the flag burning does not fall within the small class of "fighting words" that are likely to provoke the average person to retaliation and thereby cause a breach of the peace; and (3) the state's asserted interest in preserving the flag as a symbol of nationhood and national unity does not justify the protester's conviction, since (a) the attempted restriction on expression is content-based, and thus subject to the most exacting scrutiny, given that the flag-desecration statute is aimed not at protecting the physical integrity of the flag in all circumstances, but only against impairments that would cause serious offense to others, and is aimed at protecting onlookers from being offended by the ideas expressed by the prohibited activity, and (b) although the state has a legitimate interest in encouraging proper treatment of the flag, it may not foster its own view of the flag by prohibiting expressive conduct relating to it and by criminally punishing a person for burning the flag as a means of political protest. (Rehnquist, Ch. J., and White, O'Connor, and Stevens, JJ., dissented from this holding.)

 [***LEdHN2] 

APPEAL §1600

CONSTITUTIONAL LAW §960

TRIAL §288

free speech -- flag burning -- related speech -- instruction on aiding and abetting -- reversible error --

Headnote:

[2A][2B]

Although the jury, in the state court prosecution of a protester for burning the American flag--in violation of a state statute which makes it a crime to desecrate the flag, but does not on its face permit conviction for remarks critical of the flag or its referents--was instructed in accordance with the state's law of parties that a person is criminally responsible for an act committed by another if he or she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense with the intent of promoting or assisting the commission of the offense, this instruction could not have led the jury, in violation of the individual's rights under the Federal Constitution's First Amendment, to convict the protester solely for his words in leading chants denouncing the flag while it burned, where (1) this instruction was offered by the prosecution, because the individual's defense was that he was not the person who had burned the flag in question, (2) the instruction does not permit a conviction merely for the pejorative nature of the individual's words, and (3) the words themselves--"America, the red, white, and blue, we spit on you"--do not encourage the burning of the flag as the instruction seems to require; given the additional fact that the bulk of the prosecutor's argument, which mentioned that the individual had led this chant, was premised on the individual's culpability as a sole actor, it is too unlikely that the jury convicted the individual on the basis of this alternative theory for the conviction to be reversed on this ground.

 [***LEdHN3] 

APPEAL §732

United States Supreme Court -- review of state court decision -- validity of state statute --

Headnote:

[3A][3B]

Although an individual who has been convicted in a state court of desecrating the American flag by burning it raises a claim that the state statute under which he was convicted violates on its face the free speech provisions of the Federal Constitution's First Amendment, the United States Supreme Court, in reviewing the individual's conviction on certiorari, will address only the alternative claim that the statute violates the First Amendment as applied to political expression like that engaged in by the individual--who allegedly burned the flag, to the accompaniment of the chant "America, the red, white, and blue, we spit on you," in the course of a demonstration protesting the policies of the incumbent President of the United States, who was then being nominated for a second term in the city where the demonstration was held, and of various corporations based in that city--because (1) although one violates the statute, according to its terms, only if one knows that one's physical mistreatment of the flag will seriously offend one or more persons likely to observe or discover this action, this does not necessarily mean that the statute applies only to expressive conduct protected by the First Amendment; (2) the prosecution of a person who had not engaged in expressive conduct would pose a different case; and (3) the case can be disposed of on narrower grounds.

 [***LEdHN4] 

CONSTITUTIONAL LAW §934

free speech -- regulation of expressive conduct --

Headnote:

[4]

Under the Federal Constitution's First Amendment, the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word, but it may not proscribe particular conduct because that conduct has expressive elements; a law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires; in short, it is not simply the verbal or nonverbal nature of the expression, but the governmental interest at stake, that helps to determine whether a restriction on that expression is valid.



 [***LEdHN5] 

APPEAL §1662

effect of decision on other grounds --

Headnote:

[5A][5B]

The United States Supreme Court--in reviewing on certiorari the state court criminal conviction of an individual who is charged with desecrating an American flag by burning it and who claims that his act was expressive conduct protected by the Federal Constitution's First Amendment--need not consider the individual's argument that the state's interest in preventing breaches of the peace, asserted as justifying the conviction, is related to the suppression of free expression in that the violent reaction to flag burnings feared by the state would be the result of the message conveyed by them, where the Supreme Court finds that this interest is not implicated on the particular facts of the case.

 [***LEdHN6] 

CONSTITUTIONAL LAW §934

free speech -- prosecution for expressive conduct --

Headnote:

[6]

Under the Federal Constitution's First Amendment, where a court is confronted with a case of prosecution for the expression of an idea through activity, the court must examine with particular care the interests advanced to support the prosecution.



 [***LEdHN7] 

CONSTITUTIONAL LAW §935

free speech -- flag burning -- audience reaction --

Headnote:

[7A][7B]

For purposes of the free speech clause of the Federal Constitution's First Amendment, there is no distinction of constitutional significance between (1) a state flag-desecration statute which is violated only when one physically mistreats the American flag in a way that he or she "knows" will offend others--so that a conviction for flag burning under that statute purportedly does not depend on onlookers' actual reactions, but on the actor's intent--and (2) a statute which depends on actual audience reaction.

 [***LEdHN8] 

CONSTITUTIONAL LAW §935

free speech -- offensiveness --

Headnote:

[8]

Under the Federal Constitution's First Amendment, the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.



 [***LEdHN9] 

CONSTITUTIONAL LAW §925

freedom of speech and religion --

Headnote:

[9]

Under the Federal Constitution, no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.



 [***LEdHN10] 

CONSTITUTIONAL LAW §934

free speech -- regulation -- mode of expression --

Headnote:

[10]

The rule, under the Federal Constitution's First Amendment, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea.


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