Summary of a First Amendment Landmark Supreme Court case: Texas v. Johnson 491 U.S. 397 (1989)(link is external)

Facts:

While the Republican National Convention was taking place in Dallas in 1984, Gregory Lee Johnson participated in a political demonstration dubbed the “Republican War Chest Tour.” The purpose of the demonstration was to protest the policies of the Reagan administration and of certain Dallas-based corporations.

The demonstrators marched through streets, chanted political slogans, and stopped at several corporate locations to stage “die-ins” intended to dramatize the consequences of nuclear war. At one point, Johnson accepted 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.” No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning.

Johnson was arrested and charged with violating a Texas statute that prevented the desecration of a venerated object, including the American flag, if the person knows it will seriously offend others. A Texas court tried and convicted Johnson. He appealed, arguing that his actions were “symbolic speech” protected by the First Amendment. The Supreme Court agreed to hear his case.

Issue:

Whether flag burning constitutes “symbolic speech” protected by the First Amendment.

Ruling:

Yes.

Reasoning:

(Brennan, J.) The majority of the Court, agreed with Johnson and held that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment. “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.”

The majority concluded that the Texas law impermissibly discriminated upon viewpoint. The Court noted, “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.” For example, although the law punished actions, such as flag burning, that might arouse anger in others, it specifically exempted from prosecution actions that were respectful of venerated objects, e.g., burning and burying a worn-out flag. The majority said that the government could not discriminate in this manner based solely upon what message was communicated.

Finally, the Court concluded that Texas’ interest in preventing breaches of the peace did not support Johnson’s conviction because the conduct at issue did not threaten to disturb the peace. Moreover, Texas’ interest in preserving the flag as a symbol of nationhood and national unity did not justify Johnson’s criminal conviction for engaging in political expression.

Dissent:

(Chief Justice Rehnquist) Writing for the dissent, Chief Justice Rehnquist recounted the historic role the flag has played and asserted that it is a visible symbol embodying the nation that represents neither a particular political party nor a particular political philosophy. The dissent further contended that the public burning of the American flag by Johnson was no essential part of any exposition of ideas and had a tendency to incite a breach of the peace. Therefore, because the American flag has occupied a unique position as the symbol of the nation, that uniqueness justifies a governmental prohibition against flag burning.

(Stevens, J.) Justice Stevens argued that the flag’s unique status as a symbol of freedom, equal opportunity, religious tolerance, and good will for others who share such operations supports a prohibition on the desecration of the American flag in the same way that the public is prohibited from spray painting the Washington Monument or the Lincoln Memorial.

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Offensive? to Some but Still Free Speech 1st Amendment

By David L. Hudson Jr.

In Snyder v. Phelps, 562 U.S. 443 (2011), the U.S. Supreme Court ruled 8-1 that the First Amendment prohibited the imposition of civil liability upon a church and its members who picketed the funeral of a slain Marine. The Court reasoned that the highly offensive expression was speech on a matter of public concern, uttered peacefully and lawfully on a public street. 

Westboro Baptist Church picketed military funerals to protest American toleration of homosexuality

The Kansas-based Westboro Baptist Church and its founder Fred Phelps regularly picketed at military funerals to advance their views that God punished the United States for its toleration and promotion of homosexuality by killing the country’s soldiers.

Phelps, two of his daughters, and four of his grandchildren picketed at the funeral of slain Marine Matthew Snyder, killed in the line of duty in Iraq. The Phelps clan conducted themselves peacefully and pursuant to police orders. However, their signs included messages, such as “God Hates Fags,” “Thank God for IEDs,” and “America is Doomed.”

Family of slain Marine won $5 million against church founders

Albert Snyder, the father of Matthew, sued the Westboro Baptist Church, Phelps, and his daughters for defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. 

A federal district court granted summary judgment to defamation and publicity given to private life. The other three claims proceeded to a jury, which awarded Snyder $2.9 million in compensatory damages and $8 million in punitive damages. The federal district court judge remitted the punitive damage award to $2.1 million for a total of $5 million.

Court overturned award, ruled church members have First Amendment right of speech

Phelps appealed to the Fourth U.S. Circuit Court of Appeals, which reversed on First Amendment grounds. The appeals court determined that the Phelps’ expression was speech on a matter of public concern. 

Snyder appealed to the U.S. Supreme Court, which affirmed the appeals court. Writing for the majority, Chief Justice John G. Roberts, Jr. emphasized that the defendants’ speech touched on matters of public concern or importance. He also emphasized that the protestors conducted themselves peacefully on public streets pursuant to police directives. 

Addressing the intentional infliction of emotional distress claim, Roberts focused on the requirement of outrageousness. He relied on the Court’s decision in Hustler Magazine, Inc. v. Falwell (1988) for the principle that outrageousness is a “highly malleable” standard that is too subjective when applied to speech on a matter of public concern.

Court noted that church members stayed ‘well away’ from funeral

Roberts next addressed the intrusion claim, a form of invasion of privacy. Snyder had argued that he was a captive audience to the offensive and repugnant messages of the defendants.  However, Roberts noted that “Westboro stayed well away from the funeral” and that the captive audience doctrine generally applies only to protect the privacy rights of homeowners. He also rejected the civil conspiracy claim. 

Roberts concluded with language that has become First Amendment lore:

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Justice Stephen Breyer wrote a concurring opinion.  He acknowledged that a state sometimes can regulate picketing on matters of public concern. However, he balanced the First Amendment values and state-protected interests to reach the same result. 

Justice Samuel Alito filed a solitary dissent. “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” he wrote.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2017.​

cited https://mtsu.edu/first-amendment/article/1474/snyder-v-phelps

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