Episode 2: Texas v. Johnson

At the 1984 Republican National Convention, a young communist named Joey Johnson marched with a group of protesters through the streets of Dallas. In front of city hall, Johnson set fire to an American flag, and his conviction for breaking a Texas state law against flag desecration began a five-year journey to the United States Supreme Court that became known as Texas v. Johnson.

Texas, and many patriotic Americans, believed it was well within the state's power to punish such profound disrespect for an important national symbol. Johnson and his attorney, Howard Kunstler, argued that such a provocative style of protest was exactly the kind of expression the First Amendment protects.

The Supreme Court, after one of the most memorable oral arguments in its history, agreed with Johnson and Kunstler. But why? Can burning a flag be considered "speech?" And if so, is the state's interest in protecting the very symbol of our nation really not enough to ban a style of protest that very few Americans ever engage in?

This episode of Heightened Scrutiny tackles those questions and more, with clips from news reports of past and recent flag burnings as well as extended excerpts from the Court's highly charged oral arguments. 

Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

Answer: Yes.


  • William Brennan (majority opinion)
  • Thurgood Marshall
  • Harry Blackmun
  • Antonin Scalia
  • Anthony Kennedy (w/ concurring opinion)


  • William Rehnquist (w/ opinion)
  • Byron White
  • Sandra Day O'Connor
  • John Paul Stevens (w/ opinion)