William J. Brennan

“ We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. ”

“ 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. ”

“ It is not the State's ends, but its means, to which we object. It cannot be gainsaid that there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to "preserv [e] the national flag as an unalloyed symbol of our country." Spence, 418 U.S. at 412. We reject the suggestion, urged at oral argument by counsel for Johnson, that the government lacks "any state interest whatsoever" in regulating the manner in which the flag may be displayed. ”

“ Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a shortcut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. ”

“ A tired person might, for example, drag a flag through the mud, knowing that this conduct is likely to offend others, and yet have no thought of expressing any idea; neither the language nor the Texas courts' interpretations of the statute precludes the possibility that such a person would be prosecuted for flag desecration. ”

“ We are fortified in today's conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson's will not endanger the special role played by our flag or the feelings it inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown [p419] man will change our Nation's attitude towards its flag. ”

“ The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage "die-ins" intended to dramatize the consequences of nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings. ”

“ To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. ”

“ Although Johnson has raised a facial challenge to Texas' flag desecration statute, we choose to resolve this case on the basis of his claim that the statute, as applied to him, violates the First Amendment. Section 42.09 regulates only physical conduct with respect to the flag, not the written or spoken word, and although one violates the statute only if one "knows" that one's physical treatment of the flag "will seriously offend one or more persons likely to observe or discover his action," Tex.Penal Code Ann. ”

“ Nor was the jury in this case told that it could convict Johnson of flag desecration if it found only that he had uttered words critical of the flag and its referents.
Johnson emphasizes, though, that the jury was instructed — according to Texas' law of parties — that
"a person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." ”

“ United States, we invalidated a federal statute permitting an actor portraying a member of one of our armed forces to "‘wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.'" 398 U.S. at 60, quoting 10 U.S.C. § 772 (f) . This proviso, we held,
which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. Id. at 63.
We perceive no basis on which to hold that the principle underlying our decision in Schacht does not apply to this case. ”

“ Acknowledging that this Court had not yet decided whether the Government may criminally sanction flag desecration in order to preserve the flag's symbolic value, the Texas court nevertheless concluded that our decision in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) , suggested that furthering this interest by curtailing speech was impermissible. "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms," the court explained,
a government cannot mandate by fiat a feeling of unity in its citizens. ”

“ If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can 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. ”

“ As to the State's goal of preventing breaches of the peace, the court concluded that the flag desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. And in fact, the court emphasized, the flag burning in this particular case did not threaten such a reaction. "‘Serious offense' occurred," the court admitted,
but there was no breach of peace, nor does the record reflect that the situation was potentially explosive. One cannot equate "serious offense" with incitement to breach the peace. Id. ”

“ California, 283 U.S. 359, [p405] 368-369 (1931) , we have held, all may find shelter under the First Amendment. See also Smith v. Goguen, 415 U.S. 566, 588 (1974) (WHITE, J., concurring in judgment) (treating flag "contemptuously" by wearing pants with small flag sewn into their seat is expressive conduct) . That we have had little difficulty identifying an expressive element in conduct relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol of our country; it is, one might say, "the one visible manifestation of two hundred years of nationhood." ”

“ Youngs Drug Products Corp., 463 U.S. 60, 65, 72 (1983) ; Carey v. Brown, 447 U.S. 455, 462-463 (1980) ; FCC v. Pacifica Foundation, 438 U.S. at 745-746; Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68 (1976) (plurality opinion) ; Buckley v. Valeo, 424 U.S. 1, 16-17 (1976) ; Grayned v. Rockford, 408 U.S. 104, 115 (1972) ; Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ; Bachellar v. Maryland, 397 U.S. 564, 567 (1970) ; O'Brien, 391 U.S. at 382 ”