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Texas V. Johnson Essay, Research Paper

Justice Brennan’s opinion in Texas v. Johnson

Justice Brennan cited several First Amendment cases to show that a precedent

was set to encompass protection for expression which is not spoken or written (i.e.,

protection for symbolic actions such as protesting conflict through arm-band wearing,

sit-ins, etc.). The cases cited, including the current one, were subject to the O’Brien test,

which is a measure to determine if the State’s statute can be considered valid, in that it

specifically forbids non-communicative expression for the benefit of direct substantial

government interest .

In defense, the State extended two interests to justify the limitations on

expression: preventing disturbance of the peace and protecting the flag as “a symbol of

nationhood and national unity.” The Court deemed that the first qualification was not

subject to the O’Brien test, and that the second was a direct maneuver to limit expression.

The Court first showed that Johnson’s action did not classify as either “breaching

the peace,” or as “fighting words.” Thus, the circumstances must be evaluated to

determine whether or not the motive for the action was to directly incite or produce

“imminent lawless action” (Brandenburg v. Ohio), and whether or not the breach of

peace actually occurs. Justice Brennan stated that the First Amendment’s purpose was to

defend such controversial and “disagreeable” speech and actions, rather than to censor it

based upon the “potential” for a breach of the peace.

Justice Brennan showed that the second motive behind the Texas statute might

show direct governmental interest in limiting expression, but that the law did not qualify

protection under the O’Brien test because the action was a “suppression of free


The Court continued by showing that the flag cannot be protected simply because

the majority of people in the State hold it in high regard. Rather, the State cannot

Constitutionally form an opinion of the flag, because it then assumes that only one view

of the flag exists. Since more than one view exists, and by protecting only one opinion

when many are present, the State is showing unjust and biased preference for that belief.

The Court also affirmed that the action of burning the flag does not lessen the symbolism

of the flag, so no specific governmental interest can exist.

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