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Enter the terms you wish to search for. During the 1984 Republican National Convention, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Held: Johnson’s conviction for flag desecration is inconsistent with the First Amendment.
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Under the circumstances, Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent. The latter interest does not justify Johnson’s conviction. The restriction on Johnson’s political expression is content based, since the Texas statute is not aimed at protecting the physical integrity of the flag in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others. It is therefore subject to “the most exacting scrutiny.
Court, in which MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ. JUSTICE BRENNAN delivered the opinion of the Court. After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not. While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration dubbed the “Republican War Chest Tour. As explained in literature distributed by the demonstrators and in speeches made by them, the purpose of this event was to protest the policies of the Reagan administration and of certain Dallas-based corporations.
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The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted, “America, the red, white, and blue, we spit on you. After the demonstrators dispersed, a witness to the flag burning collected the flag’s remains and buried them in his backyard. Of the approximately 100 demonstrators, Johnson alone was charged with a crime.
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The only criminal offense with which he was charged was the desecration of a venerated object in violation of Tex. Given the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellant’s act would have understood the message that appellant intended to convey. The act for which appellant was convicted was clearly “speech” contemplated by the First Amendment. To justify Johnson’s conviction for engaging in symbolic speech, the State asserted two interests: preserving the flag as a symbol of national unity and preventing breaches of the peace. The Court of Criminal Appeals held that neither interest supported his conviction. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent. Noting that the State had not shown that the flag was in “grave and immediate danger,” Barnette, supra, at 639, of being stripped of its symbolic value, the Texas court also decided that the flag’s special status was not endangered by Johnson’s conduct.
As to the State’s goal of preventing breaches of the peace, the court concluded that the flag desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. And in fact, the court emphasized, the flag burning in this particular case did not threaten such a reaction. One cannot equate “serious offense” with incitement to breach the peace. The court also stressed that another Texas statute, Tex. 01 demonstrated Texas’ ability to prevent disturbances of the peace without punishing this flag desecration.
09 was unconstitutional as applied to him, the state court did not address Johnson’s argument that the statute was, on its face, unconstitutionally vague and overbroad. Johnson was convicted of flag desecration for burning the flag, rather than for uttering insulting words. The First Amendment literally forbids the abridgment only of “speech,” but we have long recognized that its protection does not end at the spoken or written word. O’Brien, supra, at 376, we have acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,” Spence, supra, at 409.
Hence, we have recognized the expressive nature of students’ wearing of black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines Independent Community School Dist. Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. Attaching a peace sign to the flag, Spence, supra, at 418 U. Symbolism is a primitive but effective way of communicating ideas.
The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a shortcut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in “America. We have not automatically concluded, however, that any action taken with respect to our flag is expressive. Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred.
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In Spence, for example, we emphasized that Spence’s taping of a peace sign to his flag was “roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy. The State of Texas conceded for purposes of its oral argument in this case that Johnson’s conduct was expressive conduct, Tr. Johnson burned an American flag as part — indeed, as the culmination — of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time. It’s quite a just position . We had new patriotism and no patriotism.
In these circumstances, Johnson’s burning of the flag was conduct “sufficiently imbued with elements of communication,” Spence, 418 U. 409, to implicate the First Amendment. The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. Community for Creative Non-Violence, 468 U. A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires. O’Brien, supra, at 376, we have limited the applicability of O’Brien’s relatively lenient standard to those cases in which “the governmental interest is unrelated to the suppression of free expression. In order to decide whether O’Brien’s test applies here, therefore, we must decide whether Texas has asserted an interest in support of Johnson’s conviction that is unrelated to the suppression of expression.
If we find that an interest asserted by the State is simply not implicated on the facts before us, we need not ask whether O’Brien’s test applies. See Spence, supra, at 414, n. Texas claims that its interest in preventing breaches of the peace justifies Johnson’s conviction for flag desecration. However, no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag.
The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace, and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Nor does Johnson’s expressive conduct fall within that small class of “fighting words” that are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.
We thus conclude that the State’s interest in maintaining order is not implicated on these facts. The State need not worry that our holding will disable it from preserving the peace. We do not suggest that the First Amendment forbids a State to prevent “imminent lawless action. And, in fact, Texas already has a statute specifically prohibiting breaches of the peace, Tex. The State also asserts an interest in preserving the flag as a symbol of nationhood and national unity.
In Spence, we acknowledged that the government’s interest in preserving the flag’s special symbolic value “is directly related to expression in the context of activity” such as affixing a peace symbol to a flag. We are equally persuaded that this interest is related to expression in the case of Johnson’s burning of the flag. It remains to consider whether the State’s interest in preserving the flag as a symbol of nationhood and national unity justifies Johnson’s conviction. Moreover, Johnson was prosecuted because he knew that his politically charged expression would cause “serious offense. The statute mandates intentional or knowing abuse, that is, the kind of mistreatment that is not innocent, but rather is intentionally designed to seriously offend other individuals. Whether Johnson’s treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct. 500 feet of a foreign embassy if that sign tends to bring that foreign government into “public odium” or “public disrepute.
Rejecting the argument that the law was content-neutral because it was justified by “our international law obligation to shield diplomats from speech that offends their dignity,” id. According to the principles announced in Boos, Johnson’s political expression was restricted because of the content of the message he conveyed. We must therefore subject the State’s asserted interest in preserving the special symbolic character of the flag to “the most exacting scrutiny. Texas argues that its interest in preserving the flag as a symbol of nationhood and national unity survives this close analysis. Brief for Petitioner 22, quoting Smith v.
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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. City Council of Los Angeles v. We have not recognized an exception to this principle even where our flag has been involved. State may not criminally punish a person for uttering words critical of the flag. Nor may the government, we have held, compel conduct that would evince respect for the flag. To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
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In Spence, we held that the same interest asserted by Texas here was insufficient to support a criminal conviction under a flag-misuse statute for the taping of a peace sign to an American flag. In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it. Texas’ focus on the precise nature of Johnson’s expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea. We never before have held that the Government may ensure that a symbol be used to express only one view of that symbol or its referents. Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment.
We perceive no basis on which to hold that the principle underlying our decision in Schacht does not apply to this case. To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal?
There is, moreover, no indication — either in the text of the Constitution or in our cases interpreting it — that a separate juridical category exists for the American flag alone. It is not the State’s ends, but its means, to which we object. It cannot be gainsaid that there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to “preserv the national flag as an unalloyed symbol of our country. National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement.
We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. Johnson was convicted for engaging in expressive conduct. The State’s interest in preventing breaches of the peace does not support his conviction, because Johnson’s conduct did not threaten to disturb the peace. Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression. For purposes of this section, “desecrate” means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action. An offense under this section is a Class A misdemeanor. Because the prosecutor’s closing argument observed that Johnson had led the protestors in chants denouncing the flag while it burned, Johnson suggests that he may have been convicted for uttering critical words, rather than for burning the flag.