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.
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
The freedom to express one's opinions without interference from the the government is critical to the maintenance of liberty within a free society.
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?
Argue whether or not burning the American flag is so offensive as to be outside the legitimate marketplace of ideas.
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.
Documents you will examine:
- Baron de Montesquieu, The Spirit of the Laws, 1748
- The First Amendment, 1791
- Thomas Jefferson, First Inaugural Address, 1801
- “The Flag Goes By,” 1900
- Dissenting Opinion, Abrams v. United States, 1919
- Iwo Jima Memorial, 1954
- Concurring Opinion, Smith v. Goguen, 1974
- Johnson Testifies, 1984
- Majority Opinion (5-4), Texas v. Johnson, 1989
- Dissenting Opinion, Texas v. Johnson, 1989
- “Protestors Burning the American Flag,” 1990
- “Just Gunsmoke—For a Moment I Thought Somebody Somewhere Might be Burning a Flag,” 2000
- “Firefighters Raise Flag At Site of World Trade Center,” 2001
- The Expansion of Expression – Essay by Ken I. Kersh, Ph.D.
- Texas v. Johnson – Case Background
- Documents to Examine (A-M)
- The Issue Endures
- Identifying and Teaching against Misconceptions: Six Common Mistakes about the Supreme Court – Essay by Diana E. Hess
- Classroom Applications
- Online Resources
- Case Briefing Sheet
- Constitutional Issue Evidence Form
- Documents Summary
- Attorney Document Analysis
- Moot Court Procedures
- Tips for Thesis Statements and Essays
- Rubric for Evaluating a DBQ Essay on a 9-Point Scale
- Key Question Scoring Guidelines for All Essays
- Constitutional Principles and their Definitions
- Answer Key