Flag Burning Demonstrator Set Supreme Court Precedent

burned american flag

An American flag burning demonstration outside this year’s Republican National Convention was led by a man named Gregory Lee “Joey” Johnson, who lit the American flag on fire, and who also accidentally lit his pants on fire. Johnson also burned an American flag in protest in front of the RNC in 1984, in Dallas, Texas. He was arrested, charged with burning the American flag, and the case wound up in the Supreme Court, centering around the question of whether burning the American flag is protected speech under the First Amendment.

Johnson has been involved previously with flag burning. In 1984, Johnson set an American flag on fire outside the Republican National Convention in Dallas, Texas, in protest of the policies of President Ronald Reagan. Police arrested Johnson and charged him with violating a Texas statute protecting venerated objects, including the American flag, from desecration, if such action were likely to incite anger. After a Texas court tried and convicted Johnson, he appealed, arguing that his actions were “symbolic speech” protected by the First Amendment. In 1989, The Supreme Court agreed to hear the case.

In a tight 5-4 decision, the majority of the Court, according to Justice William Brennan, agreed with Johnson that flag burning is “symbolic speech” protected under the First Amendment. The court majority wrote that that freedom of speech protects forms of expression that may offend society, such as burning of the American flag, but that such offense or outrage is alone is not sufficient cause to suppress free speech.

The majority also took note issue with the fact that the Texas law pivoted upon perspective —  for example, that burning a worn-out American flag (as is a proper disposal of an American flag) was exempted from the law, but that such action would be punishable if it might evoke anger in others. The majority wrote that government could not discriminate in this manner based solely upon viewpoint.

Writing for the dissent, 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.

This video goes into greater detail about the precedent-setting flag burning case.