State of Texas V. Johnson (1989)


Justice Viveiros delivers the opinion of the court:
 Gregory Lee Johnson has been convicted of desecrating a
flag in violation of Texas law; a conviction which
questions ones guaranteed First Amendment, constitutional
rights. Johnson's involvement in a political demonstration
in Dallas, lead him to express his political concerns with
the nations leaders and governmental policies. The State of
Texas' conviction of Johnson was carried out due to
Johnson's conduct, a physically expressive act, rather than
a written or spoken one and based on two criteria: a
responsibility to preserve the integrity of the flag
representing the strength, pride and unity of our nation
and whether Johnson's actions threatened societal order and
peace. Both criteria, which serve as the basis for Gregory
Lee Johnson's conviction, have been explored in depth, and
this court concludes the following...
 Johnson's form of political expression did not cause
societal disorder or disrupt the peace. There were no
violent outbreaks, either verbal or physical, from members
of Johnson's protest, or other citizens, who may view flag
burning as a distasteful, ungrateful, slap in the face of
our nation. However, the State of Texas has already
acknowledged this fact. The State ruled that regardless of
the lack of evidence that Johnson's actions have threatened
societal order and public peace, on account there were no
such occurrences, flag burning has the potential to do so.
The State has concluded that flag burning could: first,
stir up people's emotions enough, possibly resulting in
intense public arguments, violent physical disputes, or
riots, and second, serves as an invitation for others to
take political protests to the next level, which could be
 The States decision brings up two questions, is flag
burning as a form of political protest an agreeable method
of practicing ones First Amendment rights, or an attempt to
persuade others to take the act beyond the rights of
citizens to more serious and dangerously, harmful, acts of
protest?, and does the State have the right to claim that
Johnson's conduct had the potential or indented to cause a
violent encounter with passionate opposition to flag
burning, even if the act did not do so?
 Johnson is an individual, responsible for his own actions,
not the actions of others. He has chosen to practice his
First Amendment rights, by expressing his disapproval of
government leadership and polices, by publicly burning and
American flag. It is this courts decision that Johnson has
not intended to encourage others to take more drastic
approaches of protesting government. Johnson can not be
accountable for wrongful impressions of his intentions.
 The State has allowed itself power not granted by the
United States Constitution, by convicting Johnson for an
act that potentially causes violent confrontations. Had
publicly burning a flag caused a fight or rioting, this
would be an entirely different case. However, the fact
remains, the protest resulted in no such event. There is
also no evidence that Johnson intended his protest to
provoke societal disorder. Again, the State has not the
right to base charges of Johnson's intentions with no
evidence, only expressing concerns of the potential
negative effects of Johnson's actions.
 The State's conviction is therefore unjust, based on its
claim that Johnson has threatened societal order and peace.
This does not disregard the conviction of Johnson entirely,
the right of the State to preserve the integrity of the
flag must still be discussed. Likewise, this courts ruling
does not disregard the right of the State of Texas to
promote and ensure order. History and common sense both
show, order and peace necessary aspects of a stable,
powerful nation and both must be ensured to protect
American citizens. However, it has not been proven that
Johnson's public desecration of the flag has infringed
American peace or has promoted or intended to evoke
societal disorder.
 The State's conviction of Johnson, based on a
responsibility to preserve the integrity of the flag as a
representation of national unity and pride, brings about
several questions involving the meaning of America itself,
and what our nation stands for. The State concerns involve
the message perceived by others, at the actions of Johnson.
If a citizen can publicly destroy the symbol representing
our nations pride and unity without consequences, then the
State has concluded that it will be perceived that this
pride and unity does not exist, having a drastically
negative impact on American society.
 The State needs to understand that the American flag is a
great symbol of our nation. A symbol which reflects, not
only pride and unity, but other aspects of America as well.
Americans have always prided our nation as "the home of the
free." The First Amendment guarantees the right of free
expression, not just positive expression consenting the
government policies and our leaders, but negative
expression condoning both as well. To convict Johnson for
publicly burning a flag as a form of political protest,
would convey an even more dangerous message to the American
people, than to respect his right to do so. The message
being that it is wrong and punishable by law to express
ones beliefs by destroying the very symbol of freedom our
nation claims we possess the right to express.
 The State's conviction of Johnson, on the grounds of
preserving the symbolic meaning of the flag, is
contradictory in another respect as well. It is customary
and preferred to burn a flag when it becomes torn, old, and
improper to symbolize our nation, as an honorable means of
disposal. Texas has never expressed disagreement with this
custom. Therefore, by convicting Johnson for burning a flag
as a means of political protest, rather than honorably
disposing of an unfit symbol, the State of Texas has
unconstitutionally ignored the First Amendment and ruled to
dictate the circumstances for burning an American flag. The
State has set its initiative and stated that flag
desecration, as a form of condoning government, will be
punishable by law.
 Government does not have the right to prohibit expression,
nor the right to enforce its views on its citizens. If the
flag is to be used as a symbol for everything great about
America, it is the right of individuals, who disagree with
politics of the time, to use that symbol as a sign of their
concerns. Therefore, it is this courts decision that the
symbolism and meaning of the flag is the very reason
publicly burning it as a form of political protest is a
permissible deed, within the boundaries of the law. The
State is therefore denied, by this court, its conviction of
Johnson based on the State's criterion that Johnson has
wrongfully conveyed unity and pride do not exist in America.
 The American flag holds an undeniable place in the hearts
of its citizens, as in mine. It is a symbol of all that
makes us proud of who we are and what this country has
accomplished. However, the State of Texas' conviction of
Gregory Lee Johnson is without evidence on the charge of
Johnson's intent to promote societal disorder and disrupt
peace. The State has also contradicted itself by taking the
responsibility of protecting the symbolism of the flag, a
responsibility which has unconstitutionally convicted
Johnson, denying him the First Amendment right of free
expression. The judgment of the Texas Court of Criminal
Appeals is therefore Affirmed.

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