Texas v. Johnson (1989): Defining the Limits of Free Speech

By Vincent Rhys DaRin — October 13, 2025

Introduction

In 1984, the Republican National Convention was held in Dallas, Texas. Gregory Lee Johnson, a member of the Communist Party, wanted to make a strong statement in protest of the policies of then President Ronald Reagan. Joining a group of protestors, they yelled "red, white and blue, we spit on you, you stand for plunder, you will go under." When they reached the Dallas City Hall, Johnson took out an American flag and lit it on fire. At the time, Texas had implemented a statute prohibiting the "Desecration of a Venerated Object," which made flag burning a criminal offense. He was arrested under that law.

Timeline of the Case

Johnson was initially found guilty of breaking the statute, despite his argument that his actions were protected under the First Amendment. He was sentenced to one year in jail, and a fine of two thousand dollars. He appealed, with the Texas Court of Criminal Appeals differing from the lower court. The Texas Court of Criminal Appeals sided with Johnson, holding that flag burning was freedom of expression protected under the First Amendment. They ruled that he could not be penalized for such action. Due to differing decisions from the lower courts and the ambiguity in the Constitution, the Supreme Court decided to take the case. Oral arguments for the case began on March 21st, 1989. Johnson’s lawyer argued that flag burning falls under the First Amendment’s free speech clause, as it was a symbolic protest. In contrast, the state argued that the government’s interest in ensuring national symbols are preserved and preventing offense to the public outweighed Johnson’s right to free speech.

The Decision

In a 5-4 decision, the Court sided with Johnson. They felt his actions were inherently political and expressive in nature, and as such fell under the protections listed in the First Amendment. The Court ruled that Johnson’s right to free speech triumphs any national symbols, or feelings of offense it may cause to others. Additionally, this case ruled that states cannot declare symbols to have a set limit to their messaging. This meant that individuals are free to use symbols to express political views under the First Amendment. In the majority opinion, written by Justice William Brennan, the Court stated, "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." The Court as a whole was not in agreement, as four dissenters disagreed with the decision. The dissenters felt that the symbolic nature of the American flag outweighed the First Amendment. Ultimately, the Court held that flag burning constitutes protected expression under the First Amendment.

Post Supreme Court Case

Since Texas v. Johnson, 491 U.S. 397 (1989) was decided by the Supreme Court, significant debate has emerged. The most immediate response was Congress implementing the Flag Protection Act of 1989. This act made it a federal crime to defile the American flag in any such way. In protest, Shawn Eichman burned an American flag on the steps of the United States Capitol. In a similar decision, the Supreme Court voted 5-4 in United States v. Eichman, 496 U.S. 310 (1990), ruling once again that flag burning was free speech. This ruling reinforced individual liberties in the First Amendment, while also striking down the Flag Protection Act of 1989 as unconstitutional. Nevertheless, efforts to criminalize the desecration of flags have continued. In 2006, a vote to make flag burning illegal failed by just one vote in the Senate. More recently, President Donald Trump signed an executive order that forces the Department of Justice to investigate flag burning incidents, with the President calling for "one year in jail if found guilty."

Despite two Supreme Court decisions affirming flag burning as protected speech, some lawmakers continue to seek restrictions. Ultimately, Texas v. Johnson has had a lasting impact by strengthening protections for expressive conduct and reaffirming the civil liberties guaranteed by the Constitution.

Bibliography

  • Texas v. Johnson, 491 U.S. 397 (1989).
  • U.S. Courts, "Texas v. Johnson", link.
  • Texas Penal Code § 42.09(a)(3) (1974) (Repealed 1990).
  • U.S. Courts, "Texas v. Johnson Podcast", link.
  • Smithsonian Magazine, "Five Things to Know About the Case That Made Burning the Flag Legal", link.
  • U.S. Const. amend. I.
  • Foundation for Individual Rights and Expression, "Texas v. Johnson", link.
  • Oyez, "Texas v. Johnson", link.
  • Constitutional Center, "When the Supreme Court ruled to allow American flag burning", link.
  • Constitutional Center, "Texas v. Johnson", link.
  • Flag Protection Act of 1989, 18 U.S.C. § 700 (1989).
  • Congress, "H.R.2978 - Flag Protection Act of 1989", link.
  • United States v. Eichman, 496 U.S. 310 (1990).
  • Oyez, "United States v. Eichman", link.
  • Associated Press, "Trump moves to ban flag burning despite Supreme Court ruling that Constitution allows", link.