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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.
The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage "die-ins" intended to dramatize the consequences of nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities.
He did, however, accept an American flag handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings. 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. No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning.
The only criminal offense with which he was charged was the desecration of a venerated object in violation of Tex. The Court of Criminal Appeals began by recognizing that Johnson's conduct was symbolic speech protected by the First Amendment: 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: 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, atof 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. We granted certiorari, U. II Johnson was convicted of flag desecration for burning the flag, rather than for uttering insulting words.
We must first determine whether Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction.
If his conduct was expressive, we next decide whether the State's regulation is related to the suppression of free expression. If the State's regulation is not related to expression, then the less stringent standard we announced in United States v.
O'Brien for regulations of noncommunicative conduct controls. See O'Brien, supra, at If it is, then we are outside of O'Brien's test, and we must ask whether this interest justifies Johnson's conviction under a more demanding standard.
A [p] third possibility is that the State's asserted interest is simply not implicated on these facts, and, in that event, the interest drops out of the picture.
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. While we have rejected the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea, United States v.
O'Brien, supra, atwe 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 In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.
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