e Fifth Circuit reversed on the ground that the statute, as applied, violated Gregory's First Amendment free speech rights.
Majority Opinion of the Supreme Court
The Supreme Court affirmed by a five to four majority the decision of the Texas appellate court that Gregory's conviction was inconsistent with the First Amendment. Justices William Brennan, Harry Blackmun, Anthony Kennedy, Thurgood Marshall and Antonin Scalia constituted the majority. Chief Justice William Rehnquist, Byron White, Sandra O'Connor and John Stevens dissented. Justice Brennan wrote the majority opinion, Justice Kennedy a concurring opinion and Justices Rehnquist and Stevens dissenting opinions.
Justice Brennan, for the majority, held that Gregory, in burning the American flag, was engaging in expressive or symbolic conduct within the ambit of the First Amendment. He concluded at p. 406 that Gregory's burning of the flag was of a "overtly, political nature." That being the case, Brennan asserted that the Court, in considering the constitutionality of governmental infringement of such expressions, had to apply a 'strict scrutiny' standard, rather than the more lenient balancing of interests test first aof an idea simply because society finds the idea itself offensive or disagreeable (p. 414);" and (2) while acknowledging that the government has a legitimate interest in protecting the flag as a symbol of nationhood and national unity, the language of the Texas statute established that it was designed to punish the expression of dissenting political views and at p. 411 that "Johnson was prosecuted because he knew that his politically charged expression would cause 'serious offense.'" Brennan said at p. 415 "nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it."
In his dissenting opinion, Rehnquist argued that the majority had given insufficient weight to the historic import...