Texas v. Johnson

Majority reasoning

The majority held that Johnson's flag burning was expressive conduct because it was part of an organized political demonstration and clearly intended to convey a particularized political message that onlookers understood. Applying a framework from prior cases, the Court found Texas's interest in preventing breaches of the peace was not implicated because no disturbance actually occurred or was likely, and offense alone does not justify suppressing speech under precedents like Brandenburg and Chaplinsky's fighting-words doctrine. The Court found Texas's other asserted interest—preserving the flag as a symbol of nationhood and unity—was directly related to suppressing the message Johnson conveyed, making the law content-based and subject to the most exacting scrutiny under Boos v. Barry. The majority reasoned that a bedrock First Amendment principle forbids government from prohibiting expression simply because society finds the idea offensive, and that allowing the flag to be burned in ceremonial disposal but not in protest would let the government dictate an approved viewpoint about the flag. In response to the dissent's argument that flag burning conveyed nothing that couldn't be conveyed by other means, the majority answered in a footnote that this claim was both inconsistent with the dissent's own recognition of the flag's unique power and had been squarely rejected before in Spence v. Washington.

Dissent reasoning

Chief Justice Rehnquist, joined by Justices White and O'Connor, argued that the flag's unique 200-year history as a unifying national symbol justifies treating it differently from other forms of expression, and that the Texas statute should be upheld because Johnson's act, like the fighting words in Chaplinsky, conveyed nothing that could not have been expressed just as forcefully through other means Texas left open to him, such as verbal denunciation or burning the flag in private. He contended flag burning is inherently inflammatory and likely to provoke a breach of the peace, comparing it to an inarticulate grunt rather than meaningful expression, and noted several state courts had upheld similar prohibitions on this basis. He also argued the Court's decision improperly second-guesses the judgment of Congress and 48 state legislatures that flag burning is profoundly offensive conduct worthy of prohibition. Separately, Justice Stevens dissented, arguing the flag carries a unique intangible value as a national asset separate from any particular message, comparable to a historic monument, and that its desecration can be prohibited regardless of the speaker's viewpoint because the prohibition targets the disagreeable conduct of desecration itself, not any disagreeable idea; he found the burden on Johnson trivial since alternative means of expressing dissent, including critical words, remained available.