An introduction to Constitutional Law 100 Supreme Court cases everyone should know

Randy E. Barnett & Josh Blackman

During the 1984 Republican National Convention in Dallas, Texas, several protesters stole an American flag, which they handed to Gregory Lee Johnson. He marched to City Hall, “doused it with kerosene, and set it on fire.” Texas convicted Johnson of burning the American flag.

On appeal, the Supreme Court ruled for Johnson by a 5-4 vote. Justice Brennan wrote the majority opinion, and he was joined by Justices Marshall, Blackmun, Scalia, and Kennedy. Chief Justice Rehnquist, and Justices White, Stevens, and O’Connor were in dissent. This case involved expressive conduct, rather than simple speech. As a result, the Court reviewed the Texas law with the four-factor O’Brien test. Specifically, the Court had to decide “whether Texas has asserted an interest in support of Johnson’s conviction that is unrelated to the suppression of expression.” Texas advanced “two compelling state interests. One [was] the preservation of the flag as a symbol of nationhood and national unity. The second [was] the preservation of . . . the peace.”

The Court rejected the second interest.

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