Class Notes 3/7/17

Wavily City Council meeting 3/6/17

1hr 9 minutes in – had conversation about this and opinions from classmates

Texas vs Johnson – case – read, review and share some info.

Taken straight from “Facts and Case Summary – Texas v. Johnson – United States Courts”

here is the link to this case – Texas v. Johnson

“Gregory Lee Johnson burned an American flag outside of the convention center where the 1984 Republican National Convention was being held in Dallas, Texas. Johnson burned the flag to protest the policies of President Ronald Reagan. He was arrested and charged with violating a Texas statute that prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger in others. A Texas court tried and convicted Johnson. He appealed, arguing that his actions were “symbolic speech” protected by the First Amendment. The Supreme Court agreed to hear his case.”

What exactly was the issue at hand?

Whether or not burning the American Flag is protected by the First Ammendment as “symbolic speech”

The Supreme Courts ruling – YES

More information from  Cornell University Law School’s website –

Argued – March 21st, 1989

Decided – June 21st, 1989

This ruling was taken into consideration because of the current laws as listed below:

Tex.Penal Code Ann. § 42.09 (1989) provides in full:

§ 42.09. Desecration of Venerated Object

(a) A person commits an offense if he intentionally or knowingly desecrates:

(1) a public monument;

(2) a place of worship or burial; or

(3) a state or national flag.

(b) 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.

(c) 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. Brief for Respondent 33-34. He relies on Street v. New York, 394 U.S. 576, 578 (1969), in which we reversed a conviction obtained under a New York statute that prohibited publicly defying or casting contempt on the flag “either by words or act” because we were persuaded that the defendant may have been convicted for his words alone. Unlike the law we faced in Street, however, the Texas flag desecration statute does not on its face permit conviction for remarks critical of the flag, as Johnson himself admits. See Brief for Respondent 34. Nor was the jury in this case told that it could convict Johnson of flag desecration if it found only that he had uttered words critical of the flag and its referents.

Johnson emphasizes, though, that the jury was instructed — according to Texas’ law of parties — that

“a person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”

Brief for Respondent 2, n. 2, quoting 1 Record 49. The State offered this instruction because Johnson’s defense was that he was not the person who had burned the flag. Johnson did not object to this instruction at trial, and although he challenged it on direct appeal, he did so only on the ground that there was insufficient evidence to support it. 706 S.W.2d 120, 124 (Tex.App.1986). It is only in this Court that Johnson has argued that the law-of-parties instruction might have led the jury to convict him for his words alone. Even if we were to find that this argument is properly raised here, however, we would conclude that it has no merit in these circumstances. The instruction would not have permitted a conviction merely for the pejorative nature of Johnson’s words, and those words themselves did not encourage the burning of the flag, as the instruction seems to require. Given the additional fact that “the bulk of the State’s argument was premised on Johnson’s culpability as a sole actor,” ibid., we find it too unlikely that the jury convicted Johnson on the basis of this alternative theory to consider reversing his conviction on this ground.

Although Johnson has raised a facial challenge to Texas’ flag desecration statute, we choose to resolve this case on the basis of his claim that the statute, as applied to him, violates the First Amendment. Section 42.09 regulates only physical conduct with respect to the flag, not the written or spoken word, and although one violates the statute only if one “knows” that one’s physical treatment of the flag “will seriously offend one or more persons likely to observe or discover his action,” Tex.Penal Code Ann. § 42.09(b) (1989), this fact does not necessarily mean that the statute applies only to expressive conduct protected by the First Amendment. Cf. Smith v. Goguen, 415 U.S. 566, 588 (1974) (WHITE, J., concurring in judgment) (statute prohibiting “contemptuous” treatment of flag encompasses only expressive conduct). A tired person might, for example, drag a flag through the mud, knowing that this conduct is likely to offend others, and yet have no thought of expressing any idea; neither the language nor the Texas courts’ interpretations of the statute precludes the possibility that such a person would be prosecuted for flag desecration. Because the prosecution of a person who had not engaged in expressive conduct would pose a different case, and because this case may be disposed of on narrower grounds, we address only Johnson’s claim that § 42.09, as applied to political expression like his, violates the First Amendment.

Relying on our decision in Boos v. Barry, 485 U.S. 312″] 485 U.S. 312 (1988), Johnson argues that this state interest is related to the suppression of free expression within the meaning of 485 U.S. 312 (1988), Johnson argues that this state interest is related to the suppression of free expression within the meaning of United States v. O’Brien, 391 U.S. 367 (1968). He reasons that the violent reaction to flag burnings feared by Texas would be the result of the message conveyed by them, and that this fact connects the State’s interest to the suppression of expression. Brief for Respondent 12, n. 11. This view has found some favor in the lower courts. See Monroe v. State Court of Fulton County, 739 F.2d 568 574-575 (CA11 1984). Johnson’s theory may overread Boos insofar as it suggests that a desire to prevent a violent audience reaction is “related to expression” in the same way that a desire to prevent an audience from being offended is “related to expression.” Because we find that the State’s interest in preventing breaches of the peace is not implicated on these facts, however, we need not venture further into this area.

There is, of course, a tension between this argument and the State’s claim that one need not actually cause serious offense in order to violate § 42.09. See Brief for Petitioner 44.

Cf. Smith v. Goguen, 415 U.S. at 590-591 (BLACKMUN, J., dissenting) (emphasizing that lower court appeared to have construed state statute so as to protect physical integrity of the flag in all circumstances); id. at 597-598 (REHNQUIST, J., dissenting) (same).

Texas suggests that Johnson’s conviction did not depend on the onlookers’ reaction to the flag burning, because § 42.09 is violated only when a person physically mistreats the flag in a way that he “knows will seriously offend one or more persons likely to observe or discover his action.” Tex.Penal Code Ann. § 42.09(b) (1969) (emphasis added). “The ‘serious offense’ language of the statute,” Texas argues, “refers to an individual’s intent and to the manner in which the conduct is effectuated, not to the reaction of the crowd.” Brief for Petitioner 44. If the statute were aimed only at the actor’s intent, and not at the communicative impact of his actions, however, there would be little reason for the law to be triggered only when an audience is “likely” to be present. At Johnson’s trial, indeed, the State itself seems not to have seen the distinction between knowledge and actual communicative impact that it now stresses: it proved the element of knowledge by offering the testimony of persons who had in fact been seriously offended by Johnson’s conduct. Id. at 6-7. In any event, we find the distinction between Texas’ statute and one dependent on actual audience reaction too precious to be of constitutional significance. Both kinds of statutes clearly are aimed at protecting onlookers from being offended by the ideas expressed by the prohibited activity.

Our inquiry is, of course, bounded by the particular facts of this case and by the statute under which Johnson was convicted. There was no evidence that Johnson himself stole the flag he burned, Tr. of Oral Arg. 17, nor did the prosecution or the arguments urged in support of it depend on the theory that the flag was stolen. Ibid. Thus, our analysis does not rely on the way in which the flag was acquired, and nothing in our opinion should be taken to suggest that one is free to steal a flag so long as one later uses it to communicate an idea. We also emphasize that Johnson was prosecuted only for flag desecration — not for trespass, disorderly conduct, or arson.

Texas claims that “Texas is not endorsing, protecting, avowing or prohibiting any particular philosophy.” Brief for Petitioner 29. If Texas means to suggest that its asserted interest does not prefer Democrats over Socialists, or Republicans over Democrats, for example, then it is beside the point, for Johnson does not rely on such an argument. He argues instead that the State’s desire to maintain the flag as a symbol of nationhood and national unity assumes that there is only one proper view of the flag. Thus, if Texas means to argue that its interest does not prefer any viewpoint over another, it is mistaken; surely one’s attitude toward the flag and its referents is a viewpoint.

Our decision in Halter v. Nebraska, 205 U.S. 34 (1907), addressing the validity of a state law prohibiting certain commercial uses of the flag, is not to the contrary. That case was decided “nearly 20 years before the Court concluded that the First Amendment applies to the States by virtue of the Fourteenth Amendment.” Spence v. Washington, 418 U.S. 405, 413, n. 7 (1974). More important, as we continually emphasized in Halter itself, that case involved purely commercial, rather than political, speech. 205 U.S. at 38, 41, 42, 45.

Nor does San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 524 (1987), addressing the validity of Congress’ decision to “authoriz[e] the United States Olympic Committee to prohibit certain commercial and promotional uses of the word ‘Olympic,'” relied upon by THE CHIEF JUSTICE’s dissent, post at 429, even begin to tell us whether the government may criminally punish physical conduct towards the flag engaged in as a means of political protest.

THE CHIEF JUSTlCE’s dissent appears to believe that Johnson’s conduct may be prohibited and, indeed, criminally sanctioned, because “his act . . . conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways.” Post at 431. Not only does this assertion sit uneasily next to the dissent’s quite correct reminder that the flag occupies a unique position in our society — which demonstrates that messages conveyed without use of the flag are not “just as forcefu[l]” as those conveyed with it — but it also ignores the fact that, in Spence, supra, we “rejected summarily” this very claim. See 418 U.S. at 411, n. 4.


The American flag played a central role in our Nation’s most tragic conflict, when the North fought against the South. The lowering of the American flag at Fort Sumter was viewed as the start of the war. G. Preble, History of the Flag of the United States of America 453 (1880). The Southern States, to formalize their separation from the Union, adopted the “Stars and Bars” of the Confederacy. The Union troops marched to the sound of “Yes We’ll Rally Round The Flag Boys, We’ll Rally Once Again.” President Abraham Lincoln refused proposals to remove from the [p424] American flag the stars representing the rebel States, because he considered the conflict not a war between two nations, but an attack by 11 States against the National Government. Id. at 411. By war’s end, the American flag again flew over “an indestructible union, composed of indestructible states.” Texas v. White, 7 Wall. 700, 725 (1869).

STEVENS, J., Dissenting Opinion

JUSTICE STEVENS, dissenting. – listed below

As the Court analyzes this case, it presents the question whether the State of Texas, or indeed the Federal Government, has the power to prohibit the public desecration of the American flag. The question is unique. In my judgment, rules that apply to a host of other symbols, such as state flags, armbands, or various privately promoted emblems of political or commercial identity, are not necessarily controlling. Even if flagburning could be considered just another species of symbolic speech under the logical application of the rules that the Court has developed in its interpretation of the First Amendment in other contexts, this case has an intangible dimension that makes those rules inapplicable.

A country’s flag is a symbol of more than “nationhood and national unity.” Ante at 407, 410, 413, and n. 9, 417, 420. It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas. The fleurs-de-lis and the tricolor both symbolized “nationhood and national unity,” but they had vastly different meanings. The message conveyed by some flags — the swastika, for example — may survive long after it has outlived its usefulness as a symbol of regimented unity in a particular nation.


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