Judge pondering the 1st amendment

Symbolic Speech

Does freedom of speech protect more than just what I say? In Texas v. Johnson, the U.S. Supreme Court looked at the question to determine whether actions, like burning a flag, could be protected by the 1st Amendment as “symbolic speech.” How do you think the court ruled? Click the button below to read the case or scroll for a summary to find the answer.

Judge pondering the 1st amendment

Texas v. Johnson

Facts: Gregory Lee Johnson burned an American flag outside of the convention center where the 1984 Republican National Convention was being held in Dallas, Texas. Johnson burned the flag to protest the policies of President Ronald Reagan. He was arrested and charged with violating a Texas statute that prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger in others. A Texas court tried and convicted Johnson. He appealed, arguing that his actions were "symbolic speech" protected by the First Amendment. The Supreme Court agreed to hear his case.

Issue: Whether flag burning constitutes "symbolic speech" protected by the First Amendment.

Court Ruling: Yes.

Judge pondering the 1st amendment.

Reasoning: The majority of the Court, according to Justice William Brennan, agreed with Johnson and held that flag burning constitutes a form of "symbolic speech" that is protected by the First Amendment. The majority noted that freedom of speech protects actions that society may find very offensive, but society's outrage alone is not justification for suppressing free speech.

In particular, the majority noted that the Texas law discriminated upon viewpoint, i.e., although the law punished actions, such as flag burning, that might arouse anger in others, it specifically exempted from prosecution actions that were respectful of venerated objects, e.g., burning and burying a worn-out flag. The majority said that the government could not discriminate in this manner based solely upon viewpoint.

In his dissenting opinion, Justice Stevens argued, that the flag's unique status as a symbol of national unity outweighed "symbolic speech" concerns, and thus, the government could lawfully prohibit flag burning.


Content from United States Courts, “Facts and Case Summary - Texas v. Johnson,” About Federal Courts: Educational Activities, available at https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-texas-v-johnson