Facts: Johnons, publicly burning an American Flag as a means of political protest at the Republican Nat’l Convention in Dallas. Out of the 100 protestors, Johnson was the only one charged.
Issue(s): Whether a person can face criminal sanctions for burning nation’s flag as a form of political protest or expressive conduct under the 1stAmend?
Procedure: Convicted desecrating Flag in violation of Texas law. After trial, he was convicted, sentenced to one year and fined $2000. Tx Ct of App Reveresed. U.S.S.Ct Affirmed.
Rule(s): 1st and 14th
Rationale: First, does burning of flag constitute expressive conduct and thereby allow protection under 1st.
If expressive conduct, then decide if ST Reg is related to the suppression of fress expression.
If not related to expression, then a less stringent standard of review applies–O’Brien.
If related, then O’Brien does not apply and then ask if Interest justifies Johnson’s conviction under more stringent standard.
If ST Int is not implicated, then the interest is eliminated from the equation.
To deter if conduct possesses enough communicative elements to bring 1st into play, asked if: 1) is there an intent to convey a particular message present; and 2) if the likelihood was great that the message would be understood by the audience?
The very purpose of the flag is to serve as a symbol of our country. Johnson’s conduct was expressive, therefore the 1st comes in. Govt has more leeway to restrict conduct than speech generally, but it may NOT restrict conduct b/c it has expressive elements. The GI guides whether the expression is valid.
To see if O’Brien enters decide if Texs has asserted an Int in support of conviction separate from the suppression of expression.
The only evidence offered to show Johnson’s actions was the testimony of those offended by the burning. Mere potential to breach the peace is insufficient to prohibit expressive conduct. Johnson’s expressive conduct does not fall w/i fighting words exception.
O’Brien does not apply here b/c Int asserted by Texas is related to the suppression of the message flag burning communicates.
Not all flag burning is illegal in TX, so the purpose of the law isn’t to preserve the flag’s physical integrity, but to protect it against situations that would offend people. Whether Johnson’s treatment of the flag violated TX law depends on the likely communicative impact of his expressive conduct.
His political expression was restricted b/c of the content of his message conveyed, therefore the TX Int must be held to the strictest scrutiny. Govt may not ban expression of an idea b/c society find the idea offensive or disagreeable. There is no American Flag exception.
Pl’s A: Texas Int: 1) Preventing Breach of Peace; and 2) Preserving the Flag as a symbol of national unity and nationhood–burning the flag will lead people to believe the flag does not stand for nationhood.