TEXAS v. JOHNSON
491 U.S. 397 (1989)
JUSTICE BRENNAN delivered the opinion of the Court.
After publicly burning an American flag as a means of
political protest, Gregory Lee Johnson was convicted of desecrating a flag in
violation of Texas law. This case presents the question whether his conviction
is consistent with the First Amendment. We hold that it is not.
I
While the Republican National Convention was taking place in
Dallas in 1984, respondent Johnson participated in a political demonstration
dubbed the "Republican War Chest Tour." As explained in literature
distributed by the demonstrators and in speeches made by them, the purpose of
this event was to protest the policies of the Reagan administration and of
certain Dallas-based corporations. The demonstrators 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 protestor 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 protestors chanted: "America, the red,
white, and blue, we spit on you." After the demonstrators dispersed, a
witness to the flag burning collected the flag's remains and buried them in his
backyard. No one was physically injured or threatened with injury, though
several witnesses testified that they had been seriously offended by the flag
burning. [491 U.S. 397, 400]
Of the approximately 100 demonstrators, Johnson alone was
charged with a crime. The only criminal offense with which he was charged was
the desecration of a venerated object in violation of Tex. Penal Code Ann.
42.09(a)(3) (1989). 1 After a trial, he was convicted, sentenced to one year in
prison, and fined $2,000. The Court of Appeals for the Fifth District of Texas
at Dallas affirmed Johnson's conviction, 706 S. W. 2d 120 (1986), but the Texas
Court of Criminal Appeals reversed, 755 S. W. 2d 92 (1988), holding that the
State could not, consistent with the First Amendment, punish Johnson for
burning the flag in these circumstances.
The Court of Criminal Appeals began by recognizing that
Johnson's conduct was symbolic speech protected by the First Amendment:
"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." Id.,
at 95. To justify Johnson's conviction for engaging in symbolic speech, the
State asserted two interests: preserving the flag as a symbol of national unity
and preventing breaches of the peace. The Court of Criminal Appeals held that
neither interest supported his conviction. [491 U.S. 397, 401]
Acknowledging that this Court had not yet decided whether
the Government may criminally sanction flag desecration in order to preserve
the flag's symbolic value, the Texas court nevertheless concluded that our
decision in West Virginia Board of Education v. Barnette, 319 U.S. 624
(1943), suggested that furthering this interest by curtailing speech was
impermissible. "Recognizing that the right to differ is the centerpiece of
our First Amendment freedoms," the court explained, "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." 755 S. W. 2d, at 97.
Noting that the State had not shown that the flag was in "grave and
immediate danger," Barnette, supra, at 639, of being stripped of
its symbolic value, the Texas court also decided that the flag's special status
was not endangered by Johnson's conduct. 755 S. W. 2d, at 97.
As to the State's goal of preventing breaches of the peace,
the court concluded that the flag-desecration statute was not drawn narrowly
enough to encompass only those flag burnings that were likely to result in a
serious disturbance of the peace. And in fact, the court emphasized, the flag
burning in this particular case did not threaten such
a reaction. "`Serious offense' occurred," the court admitted,
"but 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 the peace." Id., at 96. The court also stressed that
another Texas statute, Tex. Penal Code Ann. 42.01 (1989), prohibited breaches
of the peace. Citing Boos v. Barry, 485 U.S. 312 (1988), the court
decided that 42.01 demonstrated Texas' ability to prevent disturbances of the
peace without punishing this flag desecration. 755 S. W. 2d, at 96. [491 U.S.
397, 402]
Because it reversed Johnson's conviction on the ground that
42.09 was unconstitutional as applied to him, the state court did not address
Johnson's argument that the statute was, on its face, unconstitutionally vague
and overbroad. We granted certiorari, 488 U.S. 907 (1988), and now affirm.
II
Johnson was convicted of flag desecration for burning the
flag rather than for uttering insulting words. This fact [491 U.S. 397, 403] somewhat
complicates our consideration of his conviction under the First Amendment. We
must first determine whether Johnson's burning of the flag constituted
expressive conduct, permitting him to invoke the First Amendment in challenging
his conviction. See, e. g., Spence v. Washington, 418 U.S. 405, 409 -411
(1974). If his conduct was expressive, we next decide whether the State's
regulation is related to the suppression of free expression. See, e. g., United
States v. O'Brien, 391 U.S. 367, 377 (1968); Spence, supra, at 414, n. 8.
If the State's regulation is not related to expression, then the less stringent
standard we announced in United States v. O'Brien for regulations of
noncommunicative conduct controls. See O'Brien, supra, at 377. If it is, then
we are outside of O'Brien's test, and we must ask whether this interest
justifies Johnson's conviction under a more demanding standard. See Spence, supra, at 411. A [491 U.S.
397, 404] third possibility is that the State's asserted interest is simply not
implicated on these facts, and in that event the interest drops out of the
picture. See 418 U.S., at 414 , n. 8.
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. While we have rejected "the view that
an apparently limitless variety of conduct can be labeled `speech' whenever the
person engaging in the conduct intends thereby to express an idea," United
States v. O'Brien, supra, at 376, we have acknowledged that conduct may be
"sufficiently imbued with elements of communication to fall within the
scope of the First and Fourteenth Amendments," Spence, supra, at
409.
In deciding whether particular conduct possesses sufficient
communicative elements to bring the First Amendment into play, we have asked
whether "[a]n 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." 418 U.S., at 410 -411. Hence, we have recognized the
expressive nature of students' wearing of black armbands to protest American
military involvement in Vietnam, Tinker v. Des Moines Independent Community
School Dist., 393 U.S. 503, 505 (1969); of a sit-in by blacks in a
"whites only" area to protest segregation, Brown v. Louisiana,
383 U.S. 131, 141-142 (1966); of the wearing of American military uniforms in a
dramatic presentation criticizing American involvement in Vietnam, Schacht
v. United States, 398 U.S. 58 (1970); and of picketing about a wide variety
of causes, see, e. g., Food Employees v. Logan Valley Plaza, Inc., 391
U.S. 308, 313 -314 (1968); United States v. Grace, 461 U.S. 171, 176 (1983).
Especially pertinent to this case are our decisions
recognizing the communicative nature of conduct relating to flags. Attaching a
peace sign to the flag, Spence, supra, at 409-410; refusing to salute the flag,
Barnette, 319 U.S., at 632 ; and displaying a red flag, Stromberg v.
California, 283 U.S. 359 , [491 U.S. 397, 405] 368-369 (1931), we have held, all may find
shelter under the First Amendment. See also Smith v. Goguen, 415 U.S.
566, 588 (1974) (WHITE, J., concurring in judgment) (treating flag
"contemptuously" by wearing pants with small flag sewn into their
seat is expressive conduct). That we have had little difficulty identifying an
expressive element in conduct relating to flags should not be surprising. The
very purpose of a national flag is to serve as a symbol of our country; it is,
one might say, "the one visible manifestation of two hundred years of
nationhood." Id., at 603 (REHNQUIST, J., dissenting). Thus, we have observed:
"[T]he flag
salute is a form of utterance. Symbolism is a primitive but effective way of
communicating ideas. The use of an emblem or flag to symbolize some system,
idea, institution, or personality, is a short cut from mind to mind. Causes and
nations, political parties, lodges and ecclesiastical groups seek to knit the
loyalty of their followings to a flag or banner, a color or design." Barnette,
supra, at 632.
Pregnant with expressive content, the flag as readily
signifies this Nation as does the combination of letters found in
"America."
We have not automatically concluded, however, that any
action taken with respect to our flag is expressive. Instead, in characterizing
such action for First Amendment purposes, we have considered the context in
which it occurred. In Spence, for example, we emphasized that Spence's taping
of a peace sign to his flag was "roughly simultaneous with and concededly
triggered by the Cambodian incursion and the Kent State tragedy." 418
U.S., at 410 . The State of Washington had conceded,
in fact, that Spence's conduct was a form of communication, and we stated that
"the State's concession is inevitable on this record." Id., at 409.
The State of Texas conceded for purposes of its oral
argument in this case that Johnson's conduct was expressive conduct, Tr. of
Oral Arg. 4, and this concession seems to us as [491 U.S. 397, 406] prudent as was Washington's in Spence.
Johnson burned an American flag as part - indeed, as the culmination - of a
political demonstration that coincided with the convening of the Republican
Party and its renomination of Ronald Reagan for
President. The expressive, overtly political nature of this conduct was both
intentional and overwhelmingly apparent. At his trial, Johnson explained his
reasons for burning the flag as follows: "The American Flag was burned as
Ronald Reagan was being renominated as President. And
a more powerful statement of symbolic speech, whether you agree with it or not,
couldn't have been made at that time. It's quite a just position [juxtaposition].
We had new patriotism and no patriotism." 5 Record 656. In these
circumstances, Johnson's burning of the flag was conduct "sufficiently
imbued with elements of communication," Spence, 418 U.S., at 409,
to implicate the First Amendment.
III
The government generally has a freer hand in restricting
expressive conduct than it has in restricting the written or spoken word. See O'Brien,
391 U.S. at 376-377; Clark v. Community for Creative Non-Violence, 468
U.S. 288, 293 (1984); Dallas v. Stanglin, 490
U.S. 19, 25 (1989). It may not, however, proscribe particular
conduct because it has expressive elements. "[W]hat might be termed
the more generalized guarantee of freedom of expression makes the communicative
nature of conduct an inadequate basis for singling out that conduct for
proscription. A law directed at the communicative nature of conduct must, like
a law directed at speech itself, be justified by the substantial showing of
need that the First Amendment requires." Community for Creative
Non-Violence v. Watt, 227 U.S. App. D.C. 19, 55-56, 703 F.2d 586, 622-623
(1983) (Scalia, J., dissenting) (emphasis in original), rev'd
sub nom. Clark v. Community for Creative Non-Violence, supra. It is, in
short, not simply the verbal or nonverbal nature of the expression, but the
governmental [491 U.S. 397, 407]
interest at stake, that helps to determine whether a restriction on that
expression is valid.
Thus, although we have recognized that where "`speech'
and `nonspeech' elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the nonspeech
element can justify incidental limitations on First Amendment freedoms,"
O'Brien, supra, at 376, we have limited the applicability of O'Brien's
relatively lenient standard to those cases in which "the governmental
interest is unrelated to the suppression of free expression." Id., at 377;
see also Spence, supra, at 414, n. 8. In stating, moreover, that O'Brien's test
"in the last analysis is little, if any, different from the standard
applied to time, place, or manner restrictions," Clark, supra, at 298, we
have highlighted the requirement that the governmental interest in question be
unconnected to expression in order to come under O'Brien's less demanding rule.
In order to decide whether O'Brien's test applies here,
therefore, we must decide whether Texas has asserted an interest in support of
Johnson's conviction that is unrelated to the suppression of expression. If we
find that an interest asserted by the State is simply not implicated on the
facts before us, we need not ask whether O'Brien's test applies. See Spence,
supra, at 414, n. 8. The State offers two separate interests to justify this
conviction: preventing breaches of the peace and preserving the flag as a
symbol of nationhood and national unity. We hold that the first interest is not
implicated on this record and that the second is related to the suppression of
expression.
A
Texas claims that its interest in preventing breaches of the
peace justifies Johnson's conviction for flag desecration. 4 [491 U.S. 397, 408] However, no disturbance of the peace
actually occurred or threatened to occur because of Johnson's burning of the
flag. Although the State stresses the disruptive behavior of the protestors during
their march toward City Hall, Brief for Petitioner 34-36, it admits that
"no actual breach of the peace occurred at the time of the flagburning or in response to the flagburning."
Id., at 34. The State's emphasis on the protestors' disorderly actions prior to
arriving at City Hall is not only somewhat surprising given that no charges
were brought on the basis of this conduct, but it also fails to show that a
disturbance of the peace was a likely reaction to Johnson's conduct. The only
evidence offered by the State at trial to show the reaction to Johnson's
actions was the testimony of several persons who had been seriously offended by
the flag burning. Id., at 6-7.
The State's position, therefore, amounts to a claim that an
audience that takes serious offense at particular expression
is necessarily likely to disturb the peace and that the expression may be
prohibited on this basis. Our precedents do not countenance such a presumption.
On the contrary, they recognize that a principal "function of free speech
under our system of government is to invite dispute. It may indeed best serve
its high purpose when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or [491 U.S. 397, 409] even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
See also Cox v. Louisiana, 379 U.S. 536, 551 (1965); Tinker v. Des
Moines Independent Community School Dist. 393 U.S., at 508 -509; Coates v.
Cincinnati, 402 U.S. 611, 615 (1971); Hustler Magazine, Inc. v. Falwell,
485 U.S. 46, 55 -56 (1988). It would be odd indeed to conclude both that
"if it is the speaker's opinion that gives offense, that consequence is a
reason for according it constitutional protection," FCC v. Pacifica
Foundation, 438 U.S. 726, 745 (1978) (opinion of STEVENS, J.), and that the
government may ban the expression of certain disagreeable ideas on the
unsupported presumption that their very disagreeableness will provoke violence.
Thus, we have not permitted the government to assume that
every expression of a provocative idea will incite a riot, but have instead
required careful consideration of the actual circumstances surrounding such
expression, asking whether the expression "is directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (reviewing
circumstances surrounding rally and speeches by Ku Klux Klan). To accept Texas'
arguments that it need only demonstrate "the potential for a breach of the
peace," Brief for Petitioner 37, and that every flag burning necessarily
possesses that potential, would be to eviscerate our holding in Brandenburg.
This we decline to do.
Nor does Johnson's expressive conduct fall within that small
class of "fighting words" that are "likely to provoke the
average person to retaliation, and thereby cause a breach of the peace." Chaplinsky
v. New Hampshire, 315 U.S. 568, 574 (1942). No reasonable onlooker would
have regarded Johnson's generalized expression of dissatisfaction with the
policies of the Federal Government as a direct personal insult or an invitation
to exchange fisticuffs. See id., at 572-573; Cantwell v. Connecticut,
310 U.S. 296, 309 (1940); FCC v. Pacifica Foundation, supra, at 745
(opinion of STEVENS, J.). [491 U.S. 397, 410]
We thus conclude that the State's interest in maintaining
order is not implicated on these facts. The State need not worry that our
holding will disable it from preserving the peace. We do not suggest that the
First Amendment forbids a State to prevent "imminent lawless action."
Brandenburg, supra, at 447. And, in fact, Texas already has a statute
specifically prohibiting breaches of the peace, Tex. Penal Code Ann. 42.01
(1989), which tends to confirm that Texas need not punish this flag desecration
in order to keep the peace. See Boos v. Barry, 485 U.S., at 327 -329.
B
The State also asserts an interest in preserving the flag as
a symbol of nationhood and national unity. In Spence, we acknowledged that the
government's interest in preserving the flag's special symbolic value "is
directly related to expression in the context of activity" such as
affixing a peace symbol to a flag. 418 U.S., at 414 ,
n. 8. We are equally persuaded that this interest is related to expression in
the case of Johnson's burning of the flag. The State, apparently, is concerned
that such conduct will lead people to believe either that the flag does not
stand for nationhood and national unity, but instead reflects other, less
positive concepts, or that the concepts reflected in the flag do not in fact
exist, that is, that we do not enjoy unity as a Nation. These concerns blossom
only when a person's treatment of the flag communicates some message, and thus
are related "to the suppression of free expression" within the
meaning of O'Brien. We are thus outside of O'Brien's test
altogether.
IV
It remains to consider whether the State's interest in
preserving the flag as a symbol of nationhood and national unity justifies
Johnson's conviction.
As in Spence, "[w]e are confronted with a case
of prosecution for the expression of an idea through activity," and
"[a]ccordingly, we must examine with particular
care the interests [491 U.S. 397, 411]
advanced by [petitioner] to support its prosecution." 418 U.S., at
411 . Johnson was not, we add, prosecuted for the expression of just any idea;
he was prosecuted for his expression of dissatisfaction with the policies of
this country, expression situated at the core of our First Amendment values.
See, e. g., Boos v. Barry, supra, at 318; Frisby v. Schultz, 487
U.S. 474, 479 (1988).
Moreover, Johnson was prosecuted because he knew that his
politically charged expression would cause "serious offense." If he
had burned the flag as a means of disposing of it because it was dirty or torn,
he would not have been convicted of flag desecration under this Texas law:
federal law designates burning as the preferred means of disposing of a flag
"when it is in such condition that it is no longer a fitting emblem for
display," 36 U.S.C. 176(k), and Texas has no quarrel with this means of
disposal. Brief for Petitioner 45. The Texas law is thus not aimed at
protecting the physical integrity of the flag in all circumstances,
but is designed instead to protect it only against impairments that
would cause serious offense to others. 6 Texas concedes as much: "Section
42.09(b) reaches only those severe acts of physical abuse of the flag carried
out in a way likely to be offensive. The statute mandates intentional or
knowing abuse, that is, the kind of mistreatment that is not innocent, but
rather is intentionally designed to seriously offend other individuals."
Id., at 44.
Whether Johnson's treatment of the flag violated Texas law
thus depended on the likely communicative impact of his expressive conduct. Our
decision in Boos v. Barry, supra, [491 U.S. 397, 412] tells us that this restriction on Johnson's
expression is content based. In Boos, we considered the constitutionality
of a law prohibiting "the display of any sign within 500 feet of a foreign
embassy if that sign tends to bring that foreign government into `public odium'
or `public disrepute.'" Id., at 315. Rejecting the argument that the law
was content neutral because it was justified by "our international law
obligation to shield diplomats from speech that offends their dignity,"
id., at 320, we held that "[t]he emotive impact of speech on its audience
is not a `secondary effect'" unrelated to the content of the expression
itself. Id., at 321 (plurality opinion); see also id., at 334 (BRENNAN, J.,
concurring in part and concurring in judgment).
According to the principles announced in Boos,
Johnson's political expression was restricted because of the content of the
message he conveyed. We must therefore subject the State's asserted interest in
preserving the special symbolic character of the flag to "the most
exacting scrutiny." Boos v. Barry, supra, at 321. 8 [491 U.S. 397,
413]
Texas argues that its interest in preserving the flag as a
symbol of nationhood and national unity survives this close analysis. Quoting
extensively from the writings of this Court chronicling the flag's historic and
symbolic role in our society, the State emphasizes the "`special
place'" reserved for the flag in our Nation. Brief for Petitioner 22,
quoting Smith v. Goguen, 415 U.S., at 601 (REHNQUIST, J., dissenting).
The State's argument is not that it has an interest simply in maintaining the
flag as a symbol of something, no matter what it symbolizes; indeed, if that
were the State's position, it would be difficult to see how that interest is
endangered by highly symbolic conduct such as Johnson's. Rather, the State's
claim is that it has an interest in preserving the flag as a symbol of
nationhood and national unity, a symbol with a determinate range of meanings.
Brief for Petitioner 20-24. According to Texas, if one physically treats the
flag in a way that would tend to cast doubt on either the idea that nationhood
and national unity are the flag's referents or that national unity actually
exists, the message conveyed thereby is a harmful one and therefore may be
prohibited. [491 U.S. 397, 414]
If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or disagreeable. See, e.
g., Hustler Magazine, Inc. v. Falwell, 485 U.S., at 55-56; City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984); Bolger
v. Youngs Drug Products Corp., 463 U.S. 60, 65 , 72 (1983); Carey v.
Brown, 447 U.S. 455, 462-463 (1980); FCC v. Pacifica Foundation, 438
U.S., at 745 -746; Young v. American Mini Theatres, Inc., 427 U.S. 50,
63-65, 67-68 (1976) (plurality opinion); Buckley v. Valeo,
424 U.S. 1, 16 -17 (1976); Grayned v.
Rockford, 408 U.S. 104, 115 (1972); Police Dept. of Chicago v. Mosley,
408 U.S. 92, 95 (1972); Bachellar v.
Maryland, 397 U.S. 564, 567 (1970); O'Brien, 391 U.S., at 382 ; Brown
v. Louisiana, 383 U.S., at 142 -143; Stromberg v. California, 283
U.S., at 368 -369.
We have not recognized an exception to this principle even
where our flag has been involved. In Street v. New York, 394 U.S. 576
(1969), we held that a State may not criminally punish a person for uttering
words critical of the flag. Rejecting the argument that the conviction could be
sustained on the ground that Street had "failed to show the respect for
our national symbol which may properly be demanded of every citizen," we
concluded that "the constitutionally guaranteed `freedom to be
intellectually . . . diverse or even contrary,' and the `right to differ as to
things that touch the heart of the existing order,' encompass the freedom to
express publicly one's opinions about our flag, including those opinions which
are defiant or contemptuous." Id., at 593, quoting Barnette, 319
U.S., at 642 . Nor may the government, we have held,
compel conduct that would evince respect for the flag. "To sustain the
compulsory flag salute we are required to say that a Bill of Rights which
guards the individual's right to speak his own mind, left it open to public
authorities to compel him to utter what is not in his mind." Id., at 634.
[491 U.S. 397, 415]
In holding in Barnette that the Constitution did not leave
this course open to the government, Justice Jackson described one of our
society's defining principles in words deserving of their frequent repetition:
"If there is any fixed star in our constitutional constellation, it is that
no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess
by word or act their faith therein." Id., at 642. In Spence, we held that
the same interest asserted by Texas here was insufficient to support a criminal
conviction under a flag-misuse statute for the taping of a peace sign to an
American flag. "Given the protected character of [Spence's] expression and
in light of the fact tht no interest the State may
have in preserving the physical integrity of a privately owned flag was
significantly impaired on these facts," we held, "the conviction must
be invalidated." 418 U.S., at 415 . See also Goguen, supra, at 588
(WHITE, J., concurring in judgment) (to convict person who had sewn a flag onto
the seat of his pants for "contemptuous" treatment of the flag would
be "[t]o convict not to protect the physical integrity or to protect
against acts interfering with the proper use of the flag, but to punish for communicating
ideas unacceptable to the controlling majority in the legislature").
In short, nothing in our precedents suggests that a State
may foster its own view of the flag by prohibiting expressive conduct relating
to it. To bring its argument outside our [491 U.S. 397, 416] precedents, Texas attempts to convince us
that even if its interest in preserving the flag's symbolic role does not allow
it to prohibit words or some expressive conduct critical of the flag, it does
permit it to forbid the outright destruction of the flag. The State's argument
cannot depend here on the distinction between written or spoken words and
nonverbal conduct. That distinction, we have shown, is of no moment where the
nonverbal conduct is expressive, as it is here, and where the regulation of
that conduct is related to expression, as it is here. See supra, at 402-403. In
addition, both Barnette and Spence involved expressive conduct,
not only verbal communication, and both found that conduct protected.
Texas' focus on the precise nature of Johnson's expression,
moreover, misses the point of our prior decisions: their enduring lesson, that
the government may not prohibit expression simply because it disagrees with its
message, is not dependent on the particular mode in which one chooses to
express an idea. If we were to hold that a State may forbid flag burning
wherever it is likely to endanger the flag's symbolic role, but allow it
wherever burning a flag promotes that role - as where, for example, a person
ceremoniously burns a dirty flag - we would be saying that when it comes to
impairing the flag's physical integrity, the flag itself may be used as [491
U.S. 397, 417] a symbol - as a
substitute for the written or spoken word or a "short cut from mind to
mind" - only in one direction. We would be permitting a State to
"prescribe what shall be orthodox" by saying that one may burn the
flag to convey one's attitude toward it and its referents only if one does not
endanger the flag's representation of nationhood and national unity.
We never before have held that the
Government may ensure that a symbol be used to express only one view of that
symbol or its referents. Indeed, in Schacht v. United States, we
invalidated a federal statute permitting an actor portraying a member of one of
our Armed Forces to "`wear the uniform of that armed force if the
portrayal does not tend to discredit that armed force.'" 398 U.S., at 60 ,
quoting 10 U.S.C. 772(f). This proviso, we held, "which leaves Americans
free to praise the war in Vietnam but can send persons like Schacht to prison
for opposing it, cannot survive in a country which has the First
Amendment." Id., at 63.
We perceive no basis on which to hold that the principle
underlying our decision in Schacht does not apply to this case. To conclude
that the government may permit designated symbols to be used to communicate
only a limited set of messages would be to enter territory having no
discernible or defensible boundaries. Could the government, on this theory,
prohibit the burning of state flags? Of copies of the Presidential seal? Of the
Constitution? In evaluating these choices under the First Amendment, how would
we decide which symbols were sufficiently special to warrant this unique
status? To do so, we would be forced to consult our own political preferences,
and impose them on the citizenry, in the very way that the First Amendment
forbids us to do. See Carey v. Brown, 447 U.S., at 466-467.
There is, moreover, no indication - either in the text of
the Constitution or in our cases interpreting it - that a separate juridical
category exists for the American flag alone. Indeed, we would not be surprised
to learn that the persons [491 U.S. 397, 418]
who framed our Constitution and wrote the Amendment that we now construe
were not known for their reverence for the Union Jack. The First Amendment does
not guarantee that other concepts virtually sacred to our Nation as a whole -
such as the principle that discrimination on the basis of
race is odious and destructive - will go unquestioned in the marketplace of
ideas. See Brandenburg v. Ohio, 395 U.S. 444 (1969). We decline,
therefore, to create for the flag an exception to the joust of principles
protected by the First Amendment.
It is not the State's ends, but its means, to which we
object. It cannot be gainsaid that there is a special place reserved for the
flag in this Nation, and thus we do not doubt that the government has a
legitimate interest in making efforts to "preserv[e]
the national flag as an unalloyed symbol of our country." Spence,
418 U.S., at 412 . We reject the suggestion, urged at
oral argument by counsel for Johnson, that the government lacks "any state
interest whatsoever" in regulating the manner in which
the flag may be displayed. Tr. of Oral Arg. 38. Congress has, for example,
enacted precatory regulations describing the proper treatment of the flag, see
36 U.S.C. 173-177, and we cast no doubt on the legitimacy of its interest in
making such recommendations. To say that the government has an interest in
encouraging proper treatment of the flag, however, is not to say that it may
criminally punish a person for burning a flag as a means of political protest.
"National unity as an end which officials may foster by persuasion and
example is not in question. The problem is whether under our Constitution
compulsion as here employed is a permissible means for its achievement." Barnette,
319 U.S., at 640.
We are fortified in today's conclusion by our conviction
that forbidding criminal punishment for conduct such as Johnson's will not
endanger the special role played by our flag or the feelings it inspires. To
paraphrase Justice Holmes, we submit that nobody can suppose that this one
gesture of an unknown [491 U.S. 397, 419]
man will change our Nation's attitude towards its flag. See Abrams v.
United States, 250 U.S. 616, 628 (1919) (Holmes, J., dissenting). Indeed,
Texas' argument that the burning of an American flag "`is an act having a
high likelihood to cause a breach of the peace,'" Brief for Petitioner 31,
quoting Sutherland v. DeWulf, 323 F. Supp.
740, 745 (SD Ill. 1971) (citation omitted), and its statute's implicit
assumption that physical mistreatment of the flag will lead to "serious
offense," tend to confirm that the flag's special role is not in danger;
if it were, no one would riot or take offense because a flag had been burned.
We are tempted to say, in fact, that the flag's deservedly
cherished place in our community will be strengthened, not weakened, by our
holding today. Our decision is a reaffirmation of the principles of freedom and
inclusiveness that the flag best reflects, and of the conviction that our
toleration of criticism such as Johnson's is a sign and source of our strength.
Indeed, one of the proudest images of our flag, the one immortalized in our own
national anthem, is of the bombardment it survived at Fort McHenry. It is the
Nation's resilience, not its rigidity, that Texas sees reflected in the flag -
and it is that resilience that we reassert today.
The way to preserve the flag's special role is not to punish
those who feel differently about these matters. It is to persuade them that
they are wrong. "To courageous, self-reliant men, with confidence in the
power of free and fearless reasoning applied through the processes of popular
government, no danger flowing from speech can be deemed clear and present,
unless the incidence of the evil apprehended is so imminent that it may befall
before there is opportunity for full discussion. If there be time to expose
through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not enforced
silence." Whitney v. California, 274 U.S. 357, 377 (1927)
(Brandeis, J., concurring). And, precisely because it is our flag that is
involved, one's response to the flag [491 U.S. 397, 420] burner may exploit the uniquely persuasive
power of the flag itself. We can imagine no more appropriate response to
burning a flag than waving one's own, no better way to counter a flag burner's
message than by saluting the flag that burns, no surer means of preserving the
dignity even of the flag that burned than by - as one witness here did -
according its remains a respectful burial. We do not consecrate the flag by
punishing its desecration, for in doing so we dilute the freedom that this
cherished emblem represents.
V
Johnson was convicted for engaging in expressive conduct.
The State's interest in preventing breaches of the peace does not support his
conviction because Johnson's conduct did not threaten to disturb the peace. Nor
does the State's interest in preserving the flag as a symbol of nationhood and
national unity justify his criminal conviction for engaging in political
expression. The judgment of the Texas Court of Criminal Appeals is therefore
Affirmed.