Texas v. Johnson Majority Opinion: Flag Burning as Free Speech

In Texas v. Johnson (1989), the Supreme Court’s majority opinion held that burning an American flag as political protest is expressive conduct protected by the First Amendment. Writing for a 5–4 Court, Justice William Brennan concluded that a state cannot criminalize the destruction of the flag because it disagrees with the message, or because onlookers find the message offensive. The ruling reversed Gregory Lee Johnson’s conviction under a Texas flag desecration statute and rendered similar laws in 47 other states unenforceable against political expression.¹

What Johnson Did and How the Case Reached the Court

During the 1984 Republican National Convention in Dallas, Johnson participated in a protest against the Reagan administration and several Dallas-based corporations. Outside City Hall, he doused an American flag in kerosene and set it on fire. No one was injured, though witnesses testified they were seriously offended. Of roughly 100 demonstrators, Johnson alone was charged, convicted, sentenced to a year in prison, and fined $2,000 under a Texas statute criminalizing intentional flag desecration that the actor knows will seriously offend onlookers.¹

The Texas Court of Criminal Appeals reversed. Texas took the case to the Supreme Court, which affirmed the reversal.¹

Why Flag Burning Counted as Speech

The First Amendment covers more than words. The majority applied the two-part test from Spence v. Washington (1974): conduct qualifies as expression when the actor intends to convey a particular message and the circumstances make it likely that observers will understand it.²

Johnson’s act met both prongs without difficulty. He burned the flag at the climax of a political march, surrounded by chanting protesters and news cameras. The Court described the conduct as unmistakably expressive and overtly political, placing it within the First Amendment’s protection.³

Why the Court Applied Strict Scrutiny Instead of O’Brien

When the government regulates conduct for reasons unrelated to expression, the more forgiving standard from United States v. O’Brien (1968) applies: a regulation stands if it serves a substantial government interest unrelated to suppressing speech and burdens expression no more than necessary.

That standard did not fit here. Texas was not enforcing a fire-safety rule or a content-neutral prohibition on public burning. The state’s asserted interest was preventing conduct that would lead people to question what the flag stands for, which only becomes a concern because of the message the conduct communicates. That made the restriction content-based, and the majority applied the demanding scrutiny that content-based restrictions on political speech must survive.³

The Core Principle: No Government-Enforced Orthodoxy

Texas argued it had a legitimate interest in preserving the flag as a symbol of national unity. The majority accepted the flag’s symbolic power but rejected the notion that the government may protect a symbol by punishing those who challenge what it stands for.

Brennan grounded the ruling in what he called a “bedrock principle” of the First Amendment: the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.³ To let the state permit waving the flag in celebration while criminalizing its destruction in protest would allow the government to select which viewpoints are acceptable, and viewpoint discrimination is exactly what the First Amendment forbids.

Quoting West Virginia State Board of Education v. Barnette, Brennan wrote that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Handing the state the power to dictate acceptable uses of the flag would put the government in charge of the language of political dissent itself.³

The majority went further, arguing that tolerating flag destruction reinforces the values the flag represents. “The flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today,” Brennan wrote, framing the decision as a reaffirmation of the freedom the flag itself best reflects.³

Why the Breach-of-Peace and Fighting Words Arguments Failed

Texas offered a second interest: preventing the violence that offended onlookers might commit. The majority found no basis for it on this record. There was no violence, no confrontation, and no imminent threat of disorder at the protest. Witnesses were offended, but offense does not license suppression.³

Texas also invoked the fighting words doctrine, which permits punishment of a direct personal insult likely to provoke immediate violence. The Court rejected the fit, reasoning that “no reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.”³ The protest was aimed at the government, not at any individual in the crowd.

Accepting the state’s argument would have created a heckler’s veto, in which any hostile audience could silence a speaker by threatening to react badly. Under Brandenburg v. Ohio, speech may be restricted only when it is directed at inciting imminent lawless action and likely to produce it.⁴ Johnson’s conduct did not approach that line.

The Vote and Kennedy’s Concurrence

Justices Marshall, Blackmun, Scalia, and Kennedy joined Brennan’s opinion. At the time, 48 of 50 states had flag desecration laws; the ruling made those statutes unenforceable against political expression. The majority closed on the familiar counsel that the answer to offensive speech is more speech, not enforced silence.¹

Justice Kennedy joined the majority in full and wrote separately to acknowledge how difficult the outcome was. “The hard fact is that sometimes we must make decisions we do not like,” Kennedy 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 described the flag as holding “a lonely place of honor in an age when absolutes are distrusted,” and concluded with a line often quoted since: “It is poignant but fundamental that the flag protects those who hold it in contempt.”¹

The Dissents

Chief Justice Rehnquist, joined by Justices White and O’Connor, argued that the flag occupies a unique position among national symbols that justifies special legal protection. He characterized Johnson’s conduct as an “inarticulate grunt or roar” more akin to fighting words than to reasoned expression, and said Congress and 48 state legislatures had reasonably concluded that public destruction of the flag could be made a crime.¹

Justice Stevens dissented separately, arguing that the flag’s unique status as a symbol of national unity outweighed the symbolic speech concerns at issue and that the government could lawfully prohibit its burning without violating the First Amendment.⁵

What the Ruling Did Not Settle

Congress responded with the Flag Protection Act of 1989, a federal statute drafted to be content-neutral by prohibiting all physical mistreatment of the flag regardless of message. In United States v. Eichman (1990), the Court struck it down 5–4, again through Justice Brennan. The majority found the neutrality illusory: the Act allowed burning a flag in a disposal ceremony but prohibited burning one at a protest, tying the restriction to the content of the expression.⁶ The provision, 18 U.S.C. § 700, remains printed in the federal code but cannot be enforced against political expression.⁷

Because Johnson rests on the First Amendment, the only permanent way to override it is a constitutional amendment. The closest attempt came in June 2006, when the Senate voted 66–34 in favor of a joint resolution authorizing Congress to prohibit physical desecration of the flag, one vote short of the two-thirds needed to send it to the states.⁸ Similar resolutions continue to be introduced, including H.J.Res.101 in the 119th Congress.⁹

In August 2025, an executive order directed the Attorney General to prioritize enforcement of “applicable, content-neutral laws” against flag desecration that causes harm unrelated to expression, and to refer conduct to state and local authorities where open burning rules, disorderly conduct statutes, or property destruction laws might apply. The order explicitly acknowledged the Supreme Court’s rulings and pointed to narrow exceptions such as fighting words and incitement.¹⁰ The order does not disturb the constitutional standard set by the majority opinion in Johnson: prosecuting flag burning because of its political message remains unconstitutional, and whether any particular prosecution under content-neutral laws is genuinely neutral or pretextual is a question courts will decide case by case.

1
Legal Information Institute. Texas v. Johnson
2
Legal Information Institute. Amdt1.7.16.1 Overview of Symbolic Speech
3
Justia U.S. Supreme Court Center. Texas v. Johnson
4
Justia U.S. Supreme Court Center. Brandenburg v. Ohio
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United States Courts. Facts and Case Summary – Texas v. Johnson
6
Oyez. United States v. Eichman
7
Office of the Law Revision Counsel. Desecration of the Flag of the United States; Penalties
8
United States Senate. U.S. Senate Roll Call Votes 109th Congress – 2nd Session
9
Congress.gov. Amendments – H.J.Res.101 – 119th Congress
10
The White House. Prosecuting Burning of the American Flag