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Texas vs. Johnson

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S: Texas Vs. Johnson

FC: Texas Vs. Johnson The Flag Burning Case Done By: Monita & Noza

1: Table of Contents 1. Case Background 2. The Lower Case Proceeding 3. The Supreme Court Proceedings 4. The Aftermath 5. Bibliography

2: Texas v. Johnson was an important decision by the Supreme Court of the United States that invalidated prohibitions on violating 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 under the First Amendment to the United States Constitution. | 1.Case Background:

3: During the 1984 Republican National Convention in Dallas, Texas, respondent Gregory Lee "Joey" Johnson, a member of the Revolutionary Communist Youth Brigade, participated in a political demonstration named the "Republican War Chest Tour", in order to protest the policies of the Reagan administration and certain Dallas-based corporations.

4: The demonstrators of the “Republican War Chest Tour” 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 protester 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 protesters chanted, "America, the red, white, and blue, we spit on you."

5: No one was physically injured or threatened with injury during the protest; although several onlookers were seriously offended and shocked by the disrespect shown towards the national flag. After the demonstrators dispersed, a witness to the flag burning collected the flag's remains and buried them in his backyard, as an act of respect for the nation's symbol. Johnson was arrested for violating the Texas Statute that prohibited the desecration of a "respected and venerable" object.

6: Out of the 100 protesters part of the Republican War Chest Tour, Johnson was the only one charged with a criminal crime. Although no one was harmed during the desecration of the flag, Johnson was charged with the violation of the Texas Penal Code Ann. 42.09. At the District Court trial he was convicted for the violation of the Texas Statute. He was convicted with a one year prison sentence as well as a 2,000 dollar fine. Afterwards, the Johnson party appealed to the Court of Appeals for the Fifth District of Texas at Dallas. The Fifth District Court of Appeals confirmed the decision of the District Court, ruling that Johnson did violate the Texas Statute despite the fact that no harm or disruption was caused and that the flag burning was Johnson’s way of expressing his outrage at the Republican Party. | 2. Lower Court Proceedings:

8: As a result, the Johnson Party appealed to the Texas Court of Criminal Appeals in order to discover whether the state was violating Johnson's First Amendment right of expression of speech or that Johnson had violated the State's constitutionally accepted laws as a result of his inconsiderate action.At the Texas Criminal Court of Appeals the Johnson party argued that his desecration of the American flag served the purpose of conveying his dissatisfaction with the Republican Party and their policies. The Johnson party appealed that his actions did not cause any bodily harm nor were intended to cause harm or breach the peace of the state thus the desecration of the flag was a mere expression of disapproval. The State of Texas, on the other hand, tried to justify its verdict by arguing that the conviction was a means to uphold the peace and preserve a venerated object symbolic of national unity.

9: After considering the case, the Texas Court of Criminal Appeals overturned the original verdict passed by the District Court, claiming that the State of Texas had violated Johnson's First Amendment Rights of freedom of expression by arresting him. The Texas Court of Criminal Appeals argued that "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." Furthermore the Texas Criminal Court of Appeals dismissed the State's interests by supporting their verdict with the precedent set in Virginia Board of Education v Barnette (1943). The Court explained its verdict by stating that “a government cannot mandate by fiat a feeling of unity in its citizens. 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.”

11: The Court further supported their verdict by demonstrating that the State of Texas failed to prove that the flag, as a symbol of unity, was in “grave and immediate danger” of being stripped of its symbolic value. Furthermore, the Court argued that due to the State's before mentioned failure, Johnson's actions did not endanger the flag's special status. Secondly, the Court dismissed the State's justification that the conviction was passed to prevent the breach of peace. It argued that although “serious offense occurred, there was no breach of peace, nor does the record reflect that the situation was potentially explosive. One cannot equate ‘serious offense” with incitement to breach of peace.” Furthermore, the Court supported their verdict by discussing the precedent established in Boos v. Barry that demonstrated Texas's ability to prevent disturbances of the peace without punishing this flag desecration. Thus the Texas Criminal Court of Appeals reversed Johnson's conviction on the ground that the Texas 42.09 Penal Statute was unconstitutional as it pertained to Johnson's case.

12: And with that the State of Texas appealed to the Supreme Court in order to determine whether or not their original verdict was constitutional, and if Johnson’s action was protected by the First Amendment as expression of Speech. The court proceedings from the original trial at the District Court level to the Supreme Court lasted a total of four years, as Johnson’s case was finally granted a hearing by the Supreme Court in 1989.

13: 3.The Supreme Court Proceedings: | Since Johnson's action did not include any insulting or bitter language, but rather an insulting action, the Supreme Court took it upon itself to determine whether or not Johnson's action was protected under the First Amendment as Freedom of Expression. If so, the Court then had to determine whether or not the State of Texas's verdict as well as the Flag Protection Statute suppressed an individual's freedom of speech. And so the Supreme Court took into consideration the precedents set in United States v. O’Brien and Spence v. Washington, in order to answer the two questions at hand. First and foremost, the Supreme Court reiterated the freedoms established by the First Amendment of the U.S. Constitution in order to determine whether or not Johnson’s action fell under the protection of the First Amendment. The Supreme Court stated that 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”.

14: And so the Supreme Court stated that the precedent set in United States v. O’Brien establishes that a conduct that is “sufficiently imbued with elements of communication” falls within the scope of the First and Fourteenth Amendments. Next, in order to determine if the conduct had sufficient elements of communication, the Supreme Court asked whether “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.” Then the Supreme Court listed Tinker v. Des Moines Independent Community School District, Brown v. Louisiana, Schacht v. United States, Food Employees v. Logan Valley Plaza, and United States v. Grace as precedents that established numerous actions such as wearing armbands and uniforms as expression of speech.

15: Furthermore the Supreme Court stated that any action taken with respect to our flag is expressive as seen in the precedents established in Spence, Smith v. Goguen, Stromberg v. California, and Barnette. The Supreme Court recognized that the American flag acts as a “primitive but effective way” of signifying America as do the letters in the word “America”.

16: However, the Court also expressed that not all actions taken with respect to the flag are expressive. Therefore the Court decided that the circumstances of the action must be taken into consideration in order to determine whether or not the action is expressive in nature with respect to the flag. Since Johnson was a member of the Republican War Chest Tour that led a public and political demonstration in order to express their outrage and protest the Regan policies, the circumstances in Johnson’s case provided clear evidence that Johnson’s action had sufficient expressive elements.

17: Thus the desecration of the American flag by Johnson during a political rally was protected under the First Amendment as expression of speech. The State of Texas, nonetheless, brought up its argument that the original verdict should be kept since the intentions of the state—despite acknowledging the fact that Johnson’s action was purely expressive—were to prevent the breach of peace that Johnson’s action posed. The Supreme Court, however, dismissed the State’s argument and stated that the State of Texas’s presumption was an overreaction since the main effect of speech is to invite dispute.

18: The Court also stated that the Freedom of Speech serves its purpose best “when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” As per the State’s second argument that it passed the verdict in order to protect a symbol of the unity of the nation, the Supreme Court ruled that based on this argument Johnson’s verdict is also unconstitutional, since the government cannot impose a political preference upon the citizens. The Supreme Court ruled that by warranting a special status to the U.S. flag the U.S. government would be imposing its own political preference on the populace thus violating the fundamental nature of the First Amendment.

19: The Supreme Court supported their verdict by alluding to the Founders who framed the Constitution on the concepts of Freedom of Expression, Speech, Individuality, Religion without the undue obligation set forth by government to pursue a particular course of action. Furthermore, the Supreme Court expressed that the best remedy for speech is more speech therefore if someone were to burn an American flag in order to depict their satisfaction another should raise the flag and wave it in an act of patriotism and reverence to the nation.

20: And so in a 5-4 ruling the U.S. Supreme Court ruled in favor of the Johnson Party by expressing that Johnson’s actions were protected under the First Amendment as Freedom of Expression and the State of Texas’s Statute that protected the American Flag against desecration was unconstitutional under the First Amendment for abridging the rights of the citizens. Justice Brennan delivered the majority opinion formed by Justices Kennedy, Scalia, Brennan, Marshall and Kennedy of the Supreme Court on June 21, 1989. Chief Justice Rehnquist joined by Justices O’Connor, White, and Stevens formed the dissenting opinion in which Rehnquist argued that the American flag was symbolic of the Nation and should be protected against disrespect especially in the form of public desecration. However, the majority won, and Johnson won his case under the First Amendment of the U.S. Constitution.

21: After the American Flag burning at the Republican National Convention, flag burning became a hot issue during the 1988 Presidential Campaign. The democratic candidate was Michael Dukakis, vetoed the law requiring the daily recitation of the pledge of allegiance to the American flag. He believed that the law was not constitutional. Because of this veto, George bush, the republican candidate, questioned Dukakis’s loyalty to the flag and the country. | 4.The After Math

22: The Supreme Court’s decision of the Johnson’s case lit a firestorm in the country. President George Bush and most of Congress immediately spearheaded a movement to ban flag desecration by means of a constitutional amendment. It required a diabolical strategy and testimony from liberals to divert votes and momentum away from the amendment and toward a Flag Protection Act—which the libs knew would be unconstitutional.

23: Thousands burned flags in protest of the new law, and when two protesters were arrested, the Supreme Court affirmed its previous ruling and struck down the federal statute. In the case of United States v. Eichman the law was struck down by the same five person majority of justices as in Johnson (in an opinion also written by Justice Brennan). Since then, Congress has considered the Flag Desecration Amendment several times. The amendment usually passes the House of Representatives, but has always been defeated in the Senate. The most recent attempt occurred when S.J.Res.12 failed by one vote on June 27, 2006.

25: 4. Bibliography: | ~Lively, Donald E. "Texas v. Johnson." American Government. ABC-CLIO, 2012. Web. 22 May 2012. ~Brennan, J. "Texas v. Johnson." Legal Information Institute. Cornell University Law School. Web. 22 May 2012. -"Texas v. Johnson." Wikipedia. N.p., 21 May 2012. Web. 20 May 2012. . -"Texas v. Johnson ." Landmark Cases of the United States . Street Law, Inc., Fall 2010. Web. 19 May 2012. . -Miller, J Anthony. Texas V. Johnson: The Flag Burning Case. N.p.: Enslow Publishers, 1997. N. pag. Print. --Pictures: Google Images

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