TEXAS V. JOHNSON Supreme Court Decision

This research paper discusses and analyzes the decision of the United States Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989) and the ensuing public controversy concerning whether and under what circumstances state governments and the federal government may constitutionally prohibit the burning or other desecration or mutilation of the American flag. By its decision in Texas v. Johnson and its later ruling in United States v. Eichman, 496 U.S. 310 (1990), the Supreme Court has effectively ruled that government may not bring criminal prosecutions against individuals who burn or desecrate the American flag so long as they are thereby engaged in expressions of political views without abridging the right of free speech guaranteed under the First Amendment to the United States Constitution. These holdings by the Court extend the ambit of the First Amendment beyond previously established limits. They have provoked public controversy over whether the Court has exceeded its proper constitutional role and various proposed constitutional amendments to overturn the Court's decisions which thus far have failed to pass by the necessary majorities.

In 1984 radical Marxist Gregory Johnson participated outside the Republican National Convention in Dallas in a political demonstration against policies of the administration of President Ronald Reagan and some Dallas-based corporations. During the course of this protest, Gregory burned an Ame

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ag nor destroy it." Likewise, in Street v. New York, 394 U.S. 576 (1969), the conviction of a resident of New York City, who burned an American flag but also said "we don't need no flag," in protest against the shooting of civil rights activist James Meredith, under a New York City penal law was struck down because the Court said that the defendant may have been convicted for the words he uttered rather than his actions. Justice John Harlan for the Court made it clear at p. 394 that if defendant had been convicted for burning the flag alone, that "was a matter about which we express no view." And, as Rehnquist pointed out at pp. 432-433 of his dissent in Texas v. Johnson, former Chief Justice Earl Warren had been emphatic in his dissent in Street when he said: "I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace . . . It is difficult for me to imagine that, had the Court faced this issue, it would have concluded otherwise." In other words, the Court broke new ground in Texas v. Johnson. As Gey summarized the prior case law, "in these earlier cases, the Court did not directly protect the actual act of burning a flag, but rather protected the ancillary mes

Category: Government - T