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 American flag. He was arrested, tried and convicted in a Dallas court of a violation of Texas Penal Code Ann. sec. 42.09(a)(3) and sentenced to one year in prison. That section was violated by anyone who "intentionally or knowingly desecrates . . . a state or national flag." Desecration was defined to mean "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 Texas Court of Criminal Appeals of th...