ABSTRACT

During the 1984 Republican National Convention in Dallas, Gregory Johnson participated in a political demonstration protesting the policies of the Reagan Administration. Following the demonstration, with protestors looking on and chanting, Johnson doused an American flag with kerosene and set it on fire. Johnson was subsequently charged and convicted under a Texas statute that prohibited the desecration of state or national flags. The statute defined desecration to include physically mistreating a flag “in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.” Although no person was physically injured or threatened with injury, several witnesses to the flag burning reported that they were seriously offended. Johnson appealed his conviction. The Court of Appeals for the Fifth District of Texas affirmed the conviction, but the Texas Court of Criminal Appeals reversed, finding that Johnson’s conduct was expressive speech protected by the First Amendment and that the statute was unconstitutional as it applied to him. The Supreme

Court affirmed. In so doing, the Court adhered to the text of the Constitution and its prior rulings construing it, thereby preserving its institutional legitimacy.