491 U.S. 397 (1989)
In 1984, during the Republican National Convention in Dallas, Texas, Gregory Lee Johnson participated in a political demonstration organized by the Revolutionary Communist Youth Brigade to protest the policies of the Reagan administration and Dallas-based corporations.1 The demonstration began with a march through the city streets where participants chanted slogans and carried signs critical of the administration and corporations.2 At several points the group staged die-ins to dramatize the consequences of nuclear war, and on some occasions spray-painted buildings and overturned plants, though Johnson took no part in those acts.3
The march concluded in front of Dallas City Hall.4 There Johnson was handed an American flag that had been removed from a flagpole at one of the corporate locations visited during the march.5 Johnson then poured kerosene on the flag and set it on fire.6 As the flag burned the demonstrators chanted America the red white and blue we spit on you.7 After the flag was consumed the group dispersed.8 No one was physically injured or threatened during the event although several witnesses were seriously offended by the flag burning.9
Of the approximately 100 demonstrators Johnson was the only one arrested.10 He was charged with desecration of a venerated object under Texas Penal Code Annotated section 42.09(a)(3).11 Following a trial Johnson was convicted and sentenced to one year in prison and a fine of two thousand dollars.12 The Court of Appeals for the Fifth District of Texas affirmed the conviction.13
The Texas Court of Criminal Appeals reversed the judgment.14 The Supreme Court of the United States granted certiorari.15
Whether Gregory Lee Johnson's act of burning an American flag during a political demonstration was conduct sufficiently imbued with elements of communication to implicate the First Amendment?16
Yes. Johnson participated in a political demonstration organized by the Revolutionary Communist Youth Brigade.20 The event occurred during the 1984 Republican National Convention in Dallas.21 The purpose was to protest Reagan administration policies and Dallas-based corporations.22
The demonstration involved a march through city streets with chants and signs.23 It was followed by die-ins and the flag burning at Dallas City Hall as the culmination of the event.24 Johnson poured kerosene on the flag and ignited it while demonstrators chanted America the red white and blue we spit on you.25 The overtly political message was intentional and apparent to observers.26
The State conceded that the conduct was expressive.27 The context of the convention and protest rendered the communicative intent overwhelmingly clear.28 Johnson offered no other verbal expression at the moment of burning.29 This application of the Spence test confirms that the flag burning was sufficiently imbued with elements of communication to fall within First Amendment protection.30
Johnson's burning of the American flag during the political demonstration constituted expressive conduct protected by the First Amendment.31
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Justice Kennedy wrote separately to express his view that this case is a difficult one.32 The flag occupies a unique position in our society as a symbol of the Nation.33 The government has an interest in protecting that symbol.34
Yet the government may not prohibit expression simply because it finds the idea offensive.35 Kennedy agreed with the Court that the Texas statute cannot be upheld as applied to Johnson.36 He noted that the judicial power is often difficult in its exercise.37
The outcome can be laid at no door but the Court's.38 Kennedy emphasized that the flag protects those who hold it in contempt.39 He concluded that Johnson's acts were speech in both the technical and fundamental meaning of the Constitution.40
Whether the State of Texas asserted an interest in preventing breaches of the peace that was implicated by Johnson's flag burning?41
A state interest in preventing breaches of the peace is not implicated by expressive conduct when no actual disturbance occurred or threatened to occur.42 The only evidence consists of offended onlookers.43 The First Amendment does not permit the government to assume that provocative ideas will incite violence.44 Specific circumstances must show imminent lawless action under Brandenburg v. Ohio.45
No. No one was physically injured or threatened with injury during the flag burning, and the only evidence offered by the State was testimony from several witnesses who had been seriously offended by the act. The demonstration involved approximately 100 participants who dispersed after the event without any riot or disturbance. Texas already maintains a separate statute prohibiting breaches of the peace that could address any actual threat. The State's position reduces to a claim that serious offense necessarily leads to a breach of the peace, but precedents reject presuming that every offensive expression will provoke violence.
Careful examination of the actual circumstances is required, and here those circumstances showed no such risk from Johnson's generalized political protest.46
The State of Texas did not assert an interest in preventing breaches of the peace that was implicated by Johnson's flag burning.47
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Joined by White, J.
Chief Justice Rehnquist dissented on the ground that the public burning of the American flag is so inherently inflammatory that it may cause a breach of the peace.48 He argued that such burning is not an essential part of any exposition of ideas.49 Rehnquist compared the act to fighting words.50
Fighting words convey nothing that could not be expressed in other ways.51 Yet they carry a tendency to incite retaliation.52 He noted that Johnson was free to make any verbal denunciation of the flag.53
Johnson could publicly burn other symbols of the Government.54 The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest.55 Rehnquist would uphold the statute as applied in this case.56
Whether the State of Texas asserted an interest in preserving the flag as a symbol of nationhood and national unity that was related to the suppression of expression?57
A governmental interest in preserving the flag as a symbol of nationhood and national unity is related to the suppression of expression when the regulation is concerned with the communicative impact of the conduct.58 The regulation seeks to prohibit treatment of the flag that would cast doubt on the ideas it represents.59 This places the restriction outside the lenient O'Brien standard.60 The restriction is subject to the most exacting scrutiny as a content-based regulation.61
Yes. The Texas statute defines desecration as physical mistreatment that the actor knows will seriously offend one or more persons likely to observe it.62 The prohibition turns on the likely communicative impact of the flag burning.63 It does not turn on any physical harm to the flag itself.64
Johnson was prosecuted precisely because he knew his politically charged expression would cause serious offense.65 This occurred during the demonstration against national policies.66 The State's asserted interest in preserving the flag's symbolic value arises only when the conduct communicates a message that tarnishes the symbol.67 This connection to the content of the message renders the interest directly related to the suppression of expression within the meaning of O'Brien.68
The State of Texas asserted an interest in preserving the flag as a symbol of nationhood and national unity that was related to the suppression of expression.69
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Justice Stevens dissented on the ground that the American flag is a unique symbol. It carries intangible dimensions beyond mere nationhood and national unity. The flag signifies ideas of freedom, equal opportunity, and good will for other peoples.70
Stevens argued that the interest in preserving its value is both significant and legitimate.71 Sanctioning public desecration will tarnish that value for those who cherish the ideas it represents.72 The prohibition imposes only a trivial burden on free expression.73
It does so by requiring alternative modes of conveying dissatisfaction.74 Stevens concluded that the ideas of liberty and equality are worth fighting for.75 The flag that uniquely symbolizes their power is itself worthy of protection from unnecessary desecration.76
Whether Johnson's conviction under the Texas flag desecration statute is consistent with the First Amendment?77
A content-based regulation of expressive conduct that prohibits the expression of an idea simply because society finds the idea offensive or disagreeable cannot survive the most exacting scrutiny under the First Amendment.78 Bedrock principles forbid the government from prescribing orthodoxy in matters of opinion.79 The government may not force citizens to confess faith in any particular view.80
No. Johnson was convicted solely for burning the flag in a manner likely to seriously offend observers during a political protest.81 The statute's application depended on the communicative impact.82 It did not depend on any threat to peace or physical integrity of the flag in all circumstances.83 The conviction punished expression of dissatisfaction with national policies.84
That expression is situated at the core of First Amendment values.85 The government may not justify the restriction by the fact that some persons were offended.86 Nor may it justify by a desire to preserve one determinate view of the flag's meaning.87 Allowing the conviction would permit the State to ensure that the flag is used to express only approved messages.88
That result is incompatible with the principle that the government may not prohibit expression because society finds the idea disagreeable.89
Johnson's conviction under the Texas flag desecration statute is not consistent with the First Amendment.90
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Joined by White, J.
Chief Justice Rehnquist dissented. He argued that the American flag occupies a unique position as the visible symbol of the Nation after more than two hundred years of history.91 This uniqueness justifies governmental prohibition of its public burning in the manner Johnson did.92
Rehnquist contended that the First Amendment does not invalidate the laws of Congress and forty-eight states that criminalize such conduct.93 He viewed the burning as no essential part of the exposition of ideas.94 It has slight social value as a step to truth.95
Any benefit is clearly outweighed by the public interest in avoiding a probable breach of the peace.96 Rehnquist would uphold the Texas statute as applied in this case.97
Justice Stevens dissented. He contended that the flag's value as a symbol of freedom and other ideas cannot be measured.98 Sanctioning its public desecration will tarnish that value for those who cherish the ideas it represents.99
The prohibition is supported by the legitimate interest in preserving the quality of an important national asset.100 The content of the message has no relevance to the case.101 Stevens emphasized that the statutory prohibition of flag desecration does not prescribe what shall be orthodox in politics or force citizens to confess faith in any symbol.102
The case involves disagreeable conduct that diminishes the value of an important national asset.103