It’s one of those things that feels like it should be illegal, right? You see a video of someone dousing the stars and stripes in lighter fluid and flicking a match, and your gut reaction is probably, "There’s no way they can do that." But in America, they can. All because of a guy named Gregory Lee Johnson and a messy, 5-4 Supreme Court decision from 1989.
Texas v. Johnson didn't just happen in a vacuum. It was the climax of a massive cultural collision during the 1984 Republican National Convention in Dallas. While Ronald Reagan was being renominated, Johnson—a member of the Revolutionary Communist Youth Brigade—was outside causing a scene. He wasn't just yelling. He took an American flag, soaked it in kerosene, and set it on fire while people chanted, "America, the red, white, and blue, we spit on you."
He got arrested, obviously. Texas had a law against "desecration of a venerated object." He was sentenced to a year in jail and slapped with a $2,000 fine. But then the legal system did what it does best: it got complicated.
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Basically, Johnson’s defense was simple: "This was my way of talking." He wasn't just burning fabric; he was expressing his intense dislike of the Reagan administration’s policies. To him, the flag was a symbol of what he was protesting, so destroying it was the ultimate "speech."
The State of Texas disagreed. They had two main arguments. First, they said they needed to prevent "breaches of the peace." People get mad when you burn the flag, and mad people start fights. Second, they argued the flag is a unique symbol of national unity that deserves special protection.
Honestly, the "breach of the peace" argument fell flat. Why? Because nobody actually fought. People were offended—deeply, viscerally offended—but there was no riot. The Supreme Court eventually pointed out that you can’t preemptively ban speech just because it might make someone want to throw a punch.
What the Supreme Court Actually Said
Justice William Brennan wrote the majority opinion, and he didn't hold back. He famously 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."
Think about that for a second. It’s a heavy concept.
The Court ruled that flag burning is symbolic speech. Just because you aren't using your mouth to say words doesn't mean you isn't communicating. Wearing an armband, staying silent during the pledge, or burning a flag—it’s all "expressive conduct."
The vote was razor-thin. 5 to 4.
Interestingly, Justice Antonin Scalia—usually a staunch conservative—voted with the liberal wing. He hated flag burning. He thought it was repugnant. But he felt the Constitution didn't give him a choice. He famously said later in life that if he were king, he’d put Johnson in jail, but "I am not king."
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Chief Justice William Rehnquist was not having it. In his dissent, he got almost poetic. He talked about the flag’s role in the Civil War, the two World Wars, and Iwo Jima. To him, the flag wasn't just another "point of view" in the marketplace of ideas. It was a "unique symbol" that stood above politics.
Justice Stevens also dissented. He argued that the flag's value as a symbol of liberty was so great that the government had a legitimate interest in protecting its physical integrity. He basically said that if you want to protest, fine—just find another way to do it that doesn't involve burning the one thing that represents the very right to protest.
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Even now, decades later, the Texas v. Johnson summary is a lightning rod. Every few years, someone suggests a Constitutional Amendment to "Protect the Flag." It never passes because, as many legal scholars argue, the best way to honor the flag is to protect the very freedoms (like speech) that it symbolizes.
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It’s a paradox. To protect the symbol of freedom, you have to allow people the freedom to destroy the symbol. If the government could pick and choose which symbols are "sacred" and which can be burned, we’d be living in a very different country.
Modern Twists and Executive Orders
Recently, there’s been a lot of chatter about new executive orders or state laws trying to find "workarounds." For instance, some propose targeting flag burners for "inciting violence" or "arson" rather than the act of desecration itself.
But the 1989 ruling is a massive wall. Unless the Supreme Court decides to overturn its own precedent—which is rare but, as we've seen with other cases lately, not impossible—flag burning remains protected.
The Actionable Takeaway: What You Need to Know
If you’re ever in a debate about this at a backyard BBQ, here are the three points that actually matter:
- Context is King: Johnson wasn't charged with arson or theft. He was charged with desecrating a symbol. That distinction is why he won. If he had stolen your personal flag from your porch and burned it, he’d be in jail for theft and property damage.
- Offense is Not a Crime: The Court was very clear that "serious offense" taken by bystanders isn't enough to strip someone of their First Amendment rights.
- The "Respectful" Loophole: Here is the irony. The U.S. Flag Code actually recommends burning a flag as the preferred way to dispose of it when it’s worn out. The difference? Intent. Texas was trying to punish the message of the burning, not the fire itself.
Your Next Steps
If this legal rabbit hole interests you, don't just stop at a summary. Read the actual majority opinion by Justice Brennan and the dissent by Rehnquist. They are masterclasses in two very different ways of viewing American history and the Constitution.
You can also look into United States v. Eichman (1990). After the Johnson ruling, Congress tried to pass a federal "Flag Protection Act" to get around it. The Supreme Court struck that down, too, proving that once they make a "bedrock principle" ruling, they usually mean it.
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Keep an eye on any local ordinances in your area. While flag burning as protest is legal, "open burn" bans and fire safety laws still apply. You can't start a bonfire in the middle of a crowded city street and call it "speech" if you're creating a literal fire hazard.
Lastly, think about the "marketplace of ideas." The Court's logic was that the best response to a burned flag isn't a jail cell; it’s a bigger, better argument for why the flag is worth respecting in the first place.