What was the concurring opinion in the Texas v. Johnson case?

Answer 1

Texas v. Johnson carried two dissenting opinions, one authored by Chief Justice Rehnquist (and joined my Justices White and O'Connor), and one authored by Justice Stevens.

Chief Justice Rehnquist's dissent was largely an appeal to sentiment, focusing on the history and meaning of the American flag, as well as the values it represented.

In addressing Johnson's behavior, Rehnquist remarked that burning the flag was not essential to the exposition of ideas, and had a tendency to incite lawlessness. He suggested burning other symbols of government, including its leaders in effigy, would have been a more appropriate expression of disapproval. He also suggested flag burning was less a form of "expressive speech" than a "grunt and a roar."

The Chief Justice believed the government could legitimately create laws prohibiting flag desecration without violating First Amendment constitutional rights.

Justice Stevens' dissent was largely an appeal to logic, acknowledging the flag as a symbol of "nationhood and national unity," but declaring it also had an intangible value as a symbol that sent a message about the United States not only to those who cared about the country's national unity, but also to dissidents, both at home and abroad. He believed the government's interest in preserving the the flag's symbolic value for the future was both significant and legitimate.

Justice Stevens compared flag desecration to allowing people to spray graffiti on the Washington Monument, an act he was certain the government would not be challenged for prohibiting. According to Stevens, the majority was wrong in asserting the statutory prohibition of flag desecration placed any more than a trivial burden on free expression and that the law. Quoting from West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943), "[the Texas statute] does not 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." He also wrote: "The statute does not compel any conduct or any profession of respect for any idea or any symbol. Nor does the statute violate "the government's paramount obligation of neutrality in its regulation of protected communication."

Justice Stevens concluded: "The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for -- and our history demonstrates that they are - it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."

Case Citation:

Texas v. Johnson, 491 US 397 (1989)

For more information, see Related Questions, below.

Answer 2

Justice Anthony Kennedy filed the sole concurring opinion in the case. In it, he lamented that cases like Texas v. Johnson sometimes exact a personal toll on the justices, rendering judicial review a difficult exercise.

Kennedy went on to say that the Court is occasionally compelled to make decisions it does not like, for fear of otherwise undermining a valued principle. Kennedy acknowledged the powerful dissenting arguments with respect, but countered:

"Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.

"With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.

"For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free."

Case Citation:

Texas v. Johnson, 491 US 397 (1989)

For more information, see Related Questions, below.

Answer 3

In a 5-4 vote, the US Supreme Court affirmed the Court of Criminal Appeals' verdict. Justice William Brennan delivered the majority opinion.

Summary of Majority Opinion

1. The state of Texas acknowledged Johnson's flag burning constituted expressive conduct, permitting him to invoke the First Amendment. Timing the demonstration to coincide with the Republican National Convention makes it overwhelmingly apparent the burning was intended as political protest. The First Amendment protects expressive political speech ("expressive" speech is understood as an action representing an opinion, even if no words are used).
2. Justice Brennan: "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."
3. Texas' argument was that people were offended, and the police feared a riot would break out. However, the protest was peaceful. The state can prevent "imminent lawless action," but there was no reason to anticipate such was about to occur.
4. Justice Brennan: "The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the Government may not permit designated symbols to be used to communicate a limited set of messages. Moreover, this Court will not create an exception to these principles protected by the First Amendment for the American flag alone." and
5. "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 . . . 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."
6. Texas cannot limit expressive action simply because it has a patriotic interest in maintaining the flag as a symbol of nationhood and national unity.
7. Justice Brennan: "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."
8. Justice Brennan: " We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

Case Citation:

Texas v. Johnson, 491 US 397 (1989)

Answer 4

Justice William J. Brennan, Jr. wrote the opinion of the Court for Texas v. Johnson, (1989), and was joined by Justices Thurgood Marshall, Antonin Scalia, Harry Blackmun and Anthony Kennedy. Kennedy also wrote a concurring opinion.

Chief Justice Rehnquist wrote a dissenting opinion that was joined by Justices Sandra Day O'Connor and Byron White. Justice John Paul Stevens wrote a separate dissent.