Texas v. Johnson

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In Texas v. Johnson, 491 U.S. 397 (1989), the 5-4 U.S. Supreme Court held that burning an American flag is a form of symbolic speech protected under the First Amendment of the United States Constitution.

The flag-burning happened at a rally that included about 100 demonstrators, of whom only Gregory Lee Johnson was charged with a crime. He was charged with the desecration of a venerated object in violation of Tex. Penal Code Ann. § 42.09(a)(3) (1989). After a trial, he was convicted, sentenced to one year in prison, and fined $2,000. The Court of Appeals for the Fifth District of Texas at Dallas affirmed Johnson's conviction, 706 S. W. 2d 120 (1986), but the Texas Court of Criminal Appeals reversed, 755 S. W. 2d 92 (1988), holding that the State could not, consistent with the First Amendment, punish Johnson for burning the flag in these circumstances. The U.S. Supreme Court held that the conviction, and the statute itself, were unconstitutional. 48 state statutes banning flag desecration were vacated.

Justice William Brennan wrote the opinion, which was joined by Justices Thurgood Marshall, Harry Blackmun, Anthony Kennedy and, surprisingly, Antonin Scalia. Justice William Rehnquist wrote a dissent that was joined by Justices Sandra Day O'Connor and Byron White. Justice John Paul Stevens, a veteran, dissented separately.

This caused a political uproar and led Congress to pass the Flag Protection Act in October 1989. That effort was also declared unconstitutional in the 1990 case US v. Eichman. That case was also decided 5-4, with the same division as Texas v. Johnson.