By Tony Mauro
Thirty years ago, the U.S. Supreme Court handed down a landmark free speech decision, ruling that burning the United States flag was a form of “expressive conduct” protected by the First Amendment.
The case was Texas v. Johnson, and the 5-4 opinion erased Gregory “Joey” Johnson’s conviction on Texas criminal charges that he desecrated a “venerated object,” an American flag, during the Republican National Convention in Dallas in 1984.
Then-justice Antonin Scalia bowed to the First Amendment and provided the fifth vote in favor of Johnson, though he often grumbled about the outcome. More than once, Scalia said that if he were king, he would jail anyone who burned the flag, and he called Johnson “a bearded weirdo.”
Fast forward to July 4 of this year, when a clean-shaven Gregory Johnson, 62, burned a flag during the Washington, D.C., Fourth of July festivities. The fact that Johnson, a member of the Revolutionary Communist Party, has continued to burn the American flag since his Supreme Court case demonstrates the continued force of the high court decision that bears his name.
Well before the Fourth of July this year, Johnson made his intentions clear, telling USA TODAY “I am going to D.C. on the Fourth of July and I’m going to burn the flag in protest (of his) whole fascist agenda,” Johnson said, referring to President Donald Trump, who presided over the celebration.
Federal officials were prepared for Johnson’s arrival, according to Washington, D.C., lawyer Mark Goldstone, Johnson’s attorney. The National Park Service drew up a permit that would allow Johnson to burn the flag, but with certain safety restrictions such as keeping the burning away from buildings. Goldstone said he negotiated details with the Park Service over several days, but as the Fourth drew near, his phone calls were not returned.
When Johnson burned the flag at 5:30 p.m. on Pennsylvania Avenue, Johnson and another activist were arrested and charged with federal and local counts that did not center on the flag but did relate to “malicious burning” and other violations.
On July 5, the day after the flag burning, the federal charges against Johnson and the other activist were suddenly dropped. No explanation was given, Goldstone said, but he believes that the Texas v. Johnson decision was the reason. At a D.C. court proceeding, Goldstone said, “Everyone was aware that this was the same Joey Johnson as the one involved in the Supreme Court case.”
Johnson still faces misdemeanor charges filed by local police, according to Goldstone, but “a lot of issues remain to be resolved.” One of those is Goldstone’s contention that the law enforcement officers, not Johnson, should be held accountable for interfering with a “constitutionally protected activity.”
A similar argument worked in favor of Johnson in Cleveland, Ohio, earlier this year. As he did in 1984, Johnson burned a flag in 2016 at the venue for the Republican National Convention. Johnson sued Cleveland for interfering with his First Amendment rights. The city denied any liability, but in June 2019 settled the litigation by agreeing to pay Johnson $225,000.
Whether Johnson prevails in the D.C. flag burning is uncertain, but the controversy is unlikely to end. In November 2016, soon after he was elected president, Trump tweeted, “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”
Tony Mauro has covered the U.S. Supreme Court for nearly 40 years and formerly wrote about the Supreme Court’s First Amendment docket for the Freedom Forum Institute’s First Amendment Center. He has written four books about the Supreme Court.