1984 convention protest led to Supreme Court decision
Case pitted free speech against protecting national symbol
Texas code at the time banned intentional “desecration of a venerated object,” including public monuments, places or worship and the national flag. Under the code, to desecrate meant to “deface, damage or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.”
The punishment Johnson faced was a year in prison and a fine. An appeals court overturned his conviction and the state turned to the Supreme Court. At issue in the nation’s highest court was the First Amendment of the Constitution and Johnson’s right to symbolic speech exercised by burning the flag.
Here’s a quick refresher on the First Amendment, which reads in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”
You can hear the major arguments from both sides of the case in the Instagram video embedded above, but they essentially came down to free speech against the protection of a national symbol.
“We believe that preservation of the flag as a symbol of nationhood and national unity is a compelling and valid state interest,” Kathi Alyce Drew said on behalf of Texas during the 1989 oral argument. That’s right – by the time this case got to the Supreme Court, another full election cycle had come and gone.
Justice Antonin Scalia, who died in 2016 and was recently replaced on the bench by Justice Neil Gorsuch, came out as one of the Texas statute’s biggest skeptics.
“I don’t see how you can argue that (Johnson is) making (the flag) any less of a symbol than it was,” Scalia said to Drew.
“I think it’s a most important case,” said Johnson’s lawyer, William Kunstler. “I sense that it goes to the heart of the First Amendment, to hear things or to see things that we hate test the First Amendment more than seeing or hearing things that we like. It wasn’t designed for things we like. They never needed a First Amendment.”
The court narrowly agreed with Kunstler in a 5-4 decision on June 21, 1989. Scalia joined the majority, which, in an opinion written by Justice William Brennan, said that “if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
“Far from being a case of ‘one picture being worth a thousand words,’ flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others,” a dissenting opinion read in part.
Flash forward to 2016. Denim jackets and cuffed jeans were back in fashion and so too, apparently, was flag burning at the RNC. There, Gregory Johnson again attempted to burn the American flag on the streets of Cleveland, only this time, according to police, he set himself and two others on fire. A misdemeanor assault charge against Johnson was dismissed earlier this year.