Expansion of Expression

Texas v. Johnson (1989)

Case background and primary source documents concerning the Supreme Court case of Texas v. Johnson. Dealing with the First Amendment’s freedom of expression protections, this lesson asks students to argue whether or not burning the American flag is so offensive as to be outside the legitimate marketplace of ideas.

Founding Principles

Federalism image

Federalism

The people delegate certain powers to the national government, while the states retain other powers; and the people, who authorize the states and national government, retain all freedoms not delegated to the governing bodies.

Freedom of Speech image

Freedom of Speech

The freedom to express one's opinions without interference from the the government is critical to the maintenance of liberty within a free society.

Case Background

During the 1984 Republican National Convention in Dallas, Texas, Gregory Lee Johnson joined an organized political protest in opposition to Reagan administration policies and some Dallas-based corporations. Demonstrators marched through the streets, chanting their message. As the march progressed, a fellow protestor handed Johnson an American flag that had been taken from a flag pole at one of their protest locations.

Upon reaching the Dallas City Hall, Johnson doused the flag with kerosene and set it ablaze. Johnson and his fellow demonstrators circled the burning flag and shouted “America, the red, white, and blue, we spit on you.” Although no one was hurt or threatened with injury by the act, many who witnessed it were deeply offended. Johnson was arrested, charged, and convicted of violating a Texas law that made it a crime to desecrate a “venerable object.” He received a sentence of one year in prison and was ordered to pay a $2,000 fine.

Johnson appealed his conviction, arguing that the Texas flag desecration statute violated the First Amendment. The state of Texas held that it had an interest in preserving the flag as a symbol of national unity. Indeed, in previous cases, the Supreme Court had referred to the American flag as “national property.”

The Court had to consider: Are there certain symbols that are so widely cherished and understood to convey certain meanings that the government can regulate their use?

Key Question

Argue whether or not burning the American flag is so offensive as to be outside the legitimate marketplace of ideas.

Directions

Read the Case Background and Key Question. Then analyze Documents A-M. Finally, answer the Key Question in a well-organized essay that incorporates your interpretations of Documents A-M, as well as your own knowledge of history.

Materials

Documents you will examine:

  1. Baron de Montesquieu, The Spirit of the Laws, 1748
  2. The First Amendment, 1791
  3. Thomas Jefferson, First Inaugural Address, 1801
  4. “The Flag Goes By,” 1900
  5. Dissenting Opinion, Abrams v. United States, 1919
  6. Iwo Jima Memorial, 1954
  7. Concurring Opinion, Smith v. Goguen, 1974
  8. Johnson Testifies, 1984
  9. Majority Opinion (5-4), Texas v. Johnson, 1989
  10. Dissenting Opinion, Texas v. Johnson, 1989
  11. “Protestors Burning the American Flag,” 1990
  12. “Just Gunsmoke—For a Moment I Thought Somebody Somewhere Might be Burning a Flag,” 2000
  13. “Firefighters Raise Flag At Site of World Trade Center,” 2001

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