Five Things to Know About the Case That Made Burning the Flag Legal

This morning, President-elect Donald Trump raised eyebrows with a tweet suggesting that those who burn the American flag be stripped of their citizenship or jailed—punishments that are expressly illegal under current United States law. The comments have stoked a longstanding debate on whether it’s okay to burn the flag as a form of protest. But how did the Supreme Court case that protected that right to begin with come to be? Here are five things to know about Texas v. Johnson, the case that made burning the flag legal:

Forty-eight states once banned burning the American flag

The history of trying to prevent Americans from burning their flag is a long one. Though the first Supreme Court ruling on the matter took place in 1907, concerns about flag burning really picked up speed during the Vietnam War. In 1968, in response to protestors who burned the flag in anti-war demonstrations, Congress passed a federal law that banned burning and otherwise desecrating the flag.

But that law—and those of 48 other states that banned flag burning—went away in 1989 when a young man named Gregory Lee “Joey” Johnson faced down the state of Texas in a landmark case.

The case that affirmed the legality of flag burning had a surprising punk rock connection

Johnson, a member of the Revolutionary Communist Party, and his friends were described by their attorney as “punk anarchists who despise the government and big business.” In 1984, Johnson and his fellow party members descended on the Republican National Convention, expressing their disdain for the proceedings through dramatic protests that included die-ins, occupations of stores and confrontations with counter-protestors.

But it was an even more provocative act that spurred the Supreme Court case. At the end of the protest, Johnson poured kerosene on an American flag a demonstrator had stolen from a nearby flagpole and burned it, chanting phrases like "red, white and blue, we spit on you, you stand for plunder, you will go under.” He later told C-SPAN that the act was designed to rebel against the “new patriotism” of Ronald Reagan and to protest U.S. involvement in Grenada and Nicaragua. “We wanted to do as much as possible to puncture the whole chauvinistic, Ramboistic atmosphere around that convention,” he recalled.

1984 Republican Convention - Protest Damage

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All of the protestors were arrested, but only Johnson was charged with violation of a Texas law forbidding the desecration of “venerated objects” like the flag. A defiant Johnson was convicted. “I remember the prosecutor telling the jury they needed to load up on me and make an example of me,” Johnson recalled in an interview. “I did not ask to go to the Supreme Court, I was dragged there.”

The case that followed clarified the principles that underlie the First Amendment

That’s exactly what happened: Johnson’s attorneys appealed his case all the way to the highest court in the land. In Texas v. Johnson, they argued that his actions constituted “symbolic speech” protected under his First Amendment rights. The Supreme Court agreed in a 5-4 decision.

“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,” wrote Justice William Brennan in the majority opinion. The majority, which also included Justices Marshall, Blackmun, Kennedy and Scalia, found that the conviction was inconsistent with Johnson’s First Amendment right to verbal and nonverbal expression.

The fight to protect the flag against burning didn’t end there

Despite the Supreme Court ruling, opponents of flag burning continued to fight to prevent it. A few months after the ruling, Congress passed H.R. 2978, a bill also known as the Flag Protection Act of 1989 that would have prevented “knowingly casting contempt on the U.S. flag” under Federal law. However, the Supreme Court then ruled that it was unconstitutional.

Since then, there have been several attempts to amend the United States Constitution to prevent the desecration of the flag, but those attempts and others, like legislation then-Senator Hillary Clinton’s co-sponsored in 2006, have failed. Today, as former SmartNews editor Rose Eveleth notes, many countries worldwide still ban flag desecration—but as long as the Supreme Court’s reading of Johnson v. Texas stands, the United States isn’t one of them.

Johnson hasn’t stopped burning the flag

Johnson still stokes the flames of dissidence: This year, he was arrested during a staged flag burning at the Republican National Convention in Cleveland when police alleged he lit his pants on fire. (The case against Johnson and other protestors is still pending.)

After years of protest, Johnson’s view on the desecration of the flag has not wavered. “Today in the U.S., it’s the same flag and the nationalistic chauvinism is even worse,” he told ABC News. Whether new flag desecration challenges are on the way is anyone’s guess—but Johnson is likely to be on hand to burn the flag no matter what.

Erin Blakemore | | READ MORE

Erin Blakemore is a Boulder, Colorado-based journalist. Her work has appeared in publications like The Washington Post, TIME, mental_floss, Popular Science and JSTOR Daily. Learn more at erinblakemore.com.