Texas v. Johnson
491 U.S. 397 (1989)

  • Johnson was protesting outside the Republican National Convention in Texas. He burned a flag, apparently offending some onlookers.
  • Johnson was arrested and charged with violating a Texas law prohibiting the vandalism of ‘respected objects’.
  • Johnson was convicted and sentenced to one year in prison. He appealed.
    • Johnson argued that flag burning was a form of speech and as such the law against flag burning was an unconstitutional infringement of his 1st Amendment right to free speech.
    • Texas argued that their compelling government interests in maintaining order and in “preserving a venerated national symbol” were strong enough to justify the infringement.
  • The Appellate Court upheld the conviction. Johnson appealed.
  • The Texas Supreme Court overturned the conviction. Texas appealed.
    • The Texas Supreme Court looked to United States v. O’Brien (391 U.S. 367 (1968)), performed a balancing test, and found that Texas’ interests were not strong enough to override Johnson’s 1st Amendment rights.
      • The O’Brien Test asks three questions:
        • Does the law further an important or substantial governmental interest,
        • Is the governmental interest unrelated to the suppression of free expression, and
        • Is the incidental restriction on alleged 1st Amendment freedoms not greater than is essential to the furtherance of that interest?
  • The US Supreme Court affirmed.
    • The US Supreme Court reiterated that the 1st Amendment covers conduct that communicates, and not just ‘speech.’
      • However, the Court did limit the types of conduct covered by the 1st Amendment to situations where “an intent to convey a particularized message was present,” and where “the likelihood was great that the message would be understood by those who viewed it.”
    • The Court agreed with the Texas Supreme Court that, when applying the balancing test of O’Brien, Texas’ interests were not compelling enough to override Johnson’s 1st Amendment rights.
      • Essentially, the Court was applying a standard strict scrutiny test.
    • Texas unsuccessfully argued that flag burning is because it tends to incite breaches of the peace, but the Court referred to Brandenburg v. Ohio (395 U.S. 444 (1969)), and found that that the State may only punish speech that would incite “imminent lawless action.”