Texas v. Johnson, 491 U.S. 397 (1989), is the U.S. Supreme Court decision that made burning the American flag in political protest a form of speech protected by the First Amendment. By a 5–4 vote, the Court struck down a Texas law that criminalized flag desecration, holding that the government cannot punish someone for expressing an idea just because others find that idea offensive.1Legal Information Institute. Texas v. Johnson The holding still stands. Every attempt since to work around it, through federal legislation, a proposed constitutional amendment, and an executive order, has either been struck down, failed to pass, or left the underlying rule intact.
The 1984 Protest in Dallas
Gregory Lee Johnson took part in a political demonstration outside the 1984 Republican National Convention in Dallas, protesting policies of the Reagan administration. As the march moved through the city, Johnson doused an American flag in kerosene and set it on fire while other protesters chanted around him. No one was hurt, though several bystanders said they were deeply offended.2United States Courts. Facts and Case Summary – Texas v. Johnson
Prosecutors charged Johnson under Texas Penal Code Section 42.09, which made it a crime to intentionally desecrate a “venerated object,” including the national flag, in a way the person knew would seriously offend observers.3U.S. Government Publishing Office. House Report 106-191 – Constitutional Amendment Authorizing Congress to Prohibit the Physical Desecration of the Flag of the United States The offense was a Class A misdemeanor. Johnson was convicted, sentenced to one year in prison, and fined $2,000.1Legal Information Institute. Texas v. Johnson
How the Case Reached the Supreme Court
A Texas court was actually the first to rule in Johnson’s favor. An intermediate appeals court upheld the conviction, but the Texas Court of Criminal Appeals, the state’s highest court for criminal matters, reversed it. That court held that punishing Johnson for burning the flag under these circumstances violated the First Amendment.1Legal Information Institute. Texas v. Johnson Texas asked the U.S. Supreme Court to review the decision. When the justices agreed with the Texas Court of Criminal Appeals, they were affirming a state court that had already ruled Johnson’s conduct was protected expression.
Why the Court Treated Flag Burning as Speech
The First Amendment protects more than spoken and written words. Physical acts that communicate a message can qualify as expressive conduct, and courts assess them using a two-part test from Spence v. Washington (1974): the person must intend to convey a specific message, and observers must be likely to understand it in context.4Justia. Spence v. Washington Johnson’s act cleared both. He burned the flag at a political convention while protesters chanted slogans against the administration. No one watching could have mistaken it for anything but a political statement.
Once conduct qualifies as expressive, the government can still regulate it under United States v. O’Brien (1968) if the regulation serves an interest unrelated to suppressing the message. Texas invoked this framework, offering two justifications for its law: preventing breaches of the peace and preserving the flag as a symbol of national unity.5Justia. Texas v. Johnson
The Court rejected both. There was no evidence Johnson’s act provoked or threatened violence. And the statute was not truly neutral: it applied only when someone treated the flag in a way that would “seriously offend” observers, meaning it kicked in precisely because the conduct communicated a disapproving message. That made it a content-based restriction on expression, triggering the highest level of constitutional scrutiny, which it could not survive.5Justia. Texas v. Johnson
The Majority Opinion
Justice William Brennan wrote for the five-justice majority, joined by Justices Marshall, Blackmun, Scalia, and Kennedy. The opinion’s most quoted line captures its central principle: “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”1Legal Information Institute. Texas v. Johnson
The majority acknowledged the flag’s special place in American life but concluded that punishing someone for burning it because of the message the act sent was exactly the sort of government control over ideas the First Amendment forbids. The best way to preserve the flag’s meaning, the Court suggested, is persuasion rather than prosecution.2United States Courts. Facts and Case Summary – Texas v. Johnson Justice Scalia, among the most conservative members of the Court, joined the majority, a signal that the ruling turned on constitutional principle rather than sympathy for Johnson or his politics.
Kennedy’s Concurrence
Justice Kennedy joined the majority in full and wrote separately to explain how hard the decision was for him. “The hard fact is that sometimes we must make decisions we do not like,” he wrote. “We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.” He closed with a line often quoted since: “It is poignant but fundamental that the flag protects those who hold it in contempt.”5Justia. Texas v. Johnson
The Dissents
Chief Justice Rehnquist, joined by Justices White and O’Connor, wrote a lengthy dissent grounded in history. He argued that “for more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning.”5Justia. Texas v. Johnson In his view, the Texas law took only one method of protest off the table and left Johnson free to use any words or other symbols he chose.
Justice Stevens filed a separate dissent arguing that the government has a legitimate interest in protecting the physical integrity of the flag itself, independent of any desire to suppress a viewpoint, and that this interest outweighed one person’s choice to use the flag as a prop for protest.
What Happened After the Ruling
The Flag Protection Act and United States v. Eichman
Congress responded within months, passing the Flag Protection Act of 1989, codified at 18 U.S.C. § 700. The federal law made it a crime to knowingly mutilate, deface, burn, or trample the American flag, with penalties of up to one year in prison, a fine, or both.6Office of the Law Revision Counsel. 18 USC 700 – Desecration of the Flag of the United States; Penalties Congress tried to draft it in content-neutral language, hoping to avoid Johnson’s fate.
It didn’t work. In United States v. Eichman, 496 U.S. 310 (1990), the Court struck down the federal statute by the same 5–4 margin and with the same lineup of justices. The government’s interest in protecting the flag’s physical integrity, the Court found, still came into play only when the flag was treated in a way that communicated a message inconsistent with its symbolic meaning. However worded, the law was tied to expression and failed strict scrutiny.7Library of Congress. United States v. Eichman, 496 U.S. 310 (1990)
The Proposed Flag Desecration Amendment
With the legislative path closed, supporters turned to amending the Constitution. The proposed Flag Desecration Amendment would have added a sentence giving Congress the power to prohibit physical desecration of the American flag. Amending the Constitution requires a two-thirds vote in both chambers followed by ratification from three-fourths of the states.8Congress.gov. Overview of Article V, Amending the Constitution
The House repeatedly cleared the two-thirds bar. The Senate never did. The closest vote came on June 27, 2006, when the Senate voted 66–34 in favor, one vote short of the 67 needed.9United States Senate. Roll Call Vote 109th Congress – 2nd Session No flag desecration amendment has ever cleared Congress.
The 2025 Executive Order
On August 25, 2025, an executive order directed the Attorney General to prioritize prosecutions of flag desecration when the conduct violates “content-neutral laws” and causes “harm unrelated to expression.” The order does not claim to overturn Johnson. It focuses on situations where flag burning also runs afoul of other laws, such as open burning restrictions, disorderly conduct statutes, or destruction of property.10The White House. Prosecuting Burning of The American Flag
The order also invokes the “fighting words” and “imminent lawless action” exceptions to the First Amendment, asserting Johnson never protected flag desecration carried out under those circumstances. It further directs immigration agencies to consider flag desecration when evaluating visa applications, naturalization proceedings, and removal actions for foreign nationals.10The White House. Prosecuting Burning of The American Flag An executive order cannot override a Supreme Court interpretation of the Constitution, so how far this one can go without conflicting with Johnson and Eichman will depend on how prosecutors use it and how courts respond.
What the Ruling Does Not Cover
Johnson protects flag burning as political expression. It does not create immunity from generally applicable laws. If a fire violates a local burn ordinance, damages someone else’s property, or creates an imminent safety hazard, those laws still apply whether a flag is involved or not. The distinction the case draws is between punishing destruction because of its symbolic message, which the First Amendment forbids, and enforcing rules that apply to everyone equally.
The federal statute at 18 U.S.C. § 700 still appears in the United States Code but has been unenforceable on First Amendment grounds since Eichman.6Office of the Law Revision Counsel. 18 USC 700 – Desecration of the Flag of the United States; Penalties At the time Johnson was decided, Chief Justice Rehnquist noted in dissent that 48 of the 50 states had flag desecration laws on their books.1Legal Information Institute. Texas v. Johnson The decision invalidated them all.