On June 21, 1989, a deeply separated United says Supreme Court upheld the legal rights of protesters come burn the American flag in a landmark very first Amendment decision.

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In the controversialTexas v. Johnsoncase, the Court voted 5-4 in donate of Gregory Lee Johnson, the protester who had melted the flag. Johnson’s actions, the bulk argued, were symbolic speech, politics in nature, and could be expressed even at the price of our nationwide symbol and also to the affront that those that disagreed v him.

Justice william Brennan wrote the bulk decision, with Justices Anthony Kennedy, Thurgood Marshall, take care of Blackmun and also Antonin Scalia authorized the majority. “Johnson was convicted because that engaging in expressive conduct. The State’s interest in preventing breaches that the peace does not support his conviction because Johnson’s command did no threaten to disturb the peace,” claimed Brennan. “Nor go the State’s interest in keeping the flag as a symbol of nationhood and also national unity justification his criminal conviction because that engaging in politics expression.”

Justice Anthony Kennedy, writing a concurrence, spelled out his reasoning succinctly.

“The hard reality is that occasionally we need to make decision we carry out not like. Us make them since they are right, ideal in the feeling that the law and the Constitution, as we watch them, compel the result,” Kennedy said. “And so great is our commitment to the process that, other than in the rarely case, we carry out not stop to refer distaste for the result, probably for are afraid of undermining a valued principle that dictates the decision. This is just one of those rarely cases.

Chief Justice william Rehnquist dissented, in addition to John Paul Stevens, Sandra day O’Connor, and also Byron White.In his dissent, Rehnquist stated that, “the flag is no simply an additional ‘idea’ or ‘point the view’ contending for acknowledgment in the marketplace the ideas.”

“I can not agree the the very first Amendment invalidates the plot of Congress, and the legislations of 48 of the 50 States, which do criminal the general public burning the the flag,” that said.

The battle in the courts around American flag desecration goes back to 1907 as soon as the Court inHalter v. Nebraskaupheld a state legislation that prohibited 2 businessmen from selling beer that had flag labels on the bottles. In 1968, Congress authorized the federal Flag Desecration regulation after a Vietnam war protest. The legislation made the illegal to “knowingly” actors “contempt” upon “any flag the the United states by publicly mutilating, defacing, defiling, burning or trampling upon it.”

The Court relocated closer come the Johnson decision in 1974, when it hosted inSpence v. Washingtonthat a human couldn’t be convicted for making use of tape to placed a tranquility sign on one American flag. The decision made that clear the a bulk of the Court witnessed the plot as defended expression under the first Amendment.

In 1984, Gregory Lee Johnson melted a flag in ~ the Republican national Convention in Dallas. Public official in Texas arrested Johnson and convicted him of break a Texas law that prohibited desecration the the flag; he to be sentenced come one year in prison and ordered to salary a $2,000 fine. The Court of Appeals because that the 5th District that Texas at Dallas affirmed Johnson's conviction, but the Texas Court of Criminal Appeals reversed, and also the supreme Court affirmed.

In reaction to theJohnsondecision, which only used to the Texas flag-desecration law, conference passed a national anti-flag burning law referred to as the Flag protection Act that 1989. But in 1990, in United says v. Eichman, the Court struck down that law as unconstitutional together well, in another 5-4 decision.

“If over there is a radical principle basic the first Amendment, that is the the government may not prohibit the expression of one idea simply because society finds the idea itself attack or disagreeable,” created Justice william Brennan, citing the Johnson case.

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The situation remains controversial to the current day, and also Congress has, as freshly as 2006, attempted to amend the constitution to prohibit flag desecration, with the initiative failing by one vote in the Senate.

In one of his last public events, justice Scalia described why he actors the deciding poll in the Johnson case, top top the primary of a textual analysis of the an initial Amendment. “If that were approximately me, i would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said at a November 2015 event in Philadelphia. “But ns am not king.”