Constitutional Law
491 U.S. 397 (1989)
Study notes for Johnson v. Texas: professor notes, cold call prep, exam angles, and memory aids.
Burning the American flag during a political protest is protected symbolic speech under the First Amendment.
In Johnson v. Texas, the Supreme Court addressed the critical intersection of free speech and symbolic expression. The case emphasizes the importance of protecting political dissent—even when it is expressed through controversial actions like flag desecration. Professors often highlight that this case reaffirms the principle that speech, as defined by the First Amendment, encompasses not just spoken words, but also actions meant to convey a particular message. By ruling in favor of Johnson, the Court underscored the rich tapestry of expression protected by the Constitution, asserting that the government cannot prohibit expression simply because it is offensive or disagreeable to some.
Moreover, the narrow 5-4 decision illustrates the contentious nature of First Amendment jurisprudence. In this case, the dissenting opinions bring forward arguments about national unity and the symbolic significance of the flag, which some may argue warrants special protection. As professors delve into this case, they often prompt students to consider the implications of the decision on future cases involving symbols of national significance and the threshold for what constitutes protected speech.
FREEDOM FOR SYMBOLS - Remember that flag burning is freedom of speech.
| Case | Distinction |
|---|---|
| Texas v. Johnson | While both involve flag desecration, Texas v. Johnson specifically addressed the applicability of the First Amendment to expressive conduct. |
| Tinker v. Des Moines Independent Community School District | Tinker dealt with student speech in schools, emphasizing that schools have limited authority to restrict student expression compared to government restrictions on political speech. |
| Chaplinsky v. New Hampshire | In Chaplinsky, the Court acknowledged that certain forms of speech (like fighting words) are not protected to ensure public order, contrasting with Johnson where the speech was political. |
Protecting symbolic speech like flag burning promotes open political discourse and dissent, which are essential to democracy.
Allowing flag desecration may undermine national unity and respect for national symbols, potentially inciting public disorder.
Exam questions may require students to analyze the balance between free expression and societal interests, as demonstrated in Johnson v. Texas. Look for hypotheticals involving symbolic speech and potentially assess competing values between protection of symbols and free expression.