ACTUAL MALICE -- NEW YORK TIMES V. SULLIVAN
Flag Burning
Texas v. Johnson
Texas v. Johnson (1989) was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant Gregory Lee Johnson’s act of flag burning was protected speech under the First Amendment to the United States Constitution.
In determining the case, the court first considered the question of whether the First Amendment reached non-speech acts, since Johnson was convicted of flag desecration rather than verbal communication, and, if so, whether Johnson’s burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction.
The First Amendment specifically disallows the abridgment of speech, but the court reiterated its long recognition that its protection does not end at the spoken or written word.
The court acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments. There must be an 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. -- Justice Brennan