U.S. Supreme Court Texas v. Johnson, 491
U.S. 397 (1989) Texas v. Johnson No. 88-155 Argued March 21, 1989 Decided June 21, 1989 491
U.S. 397 CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF TEXAS Syllabus During the 1984 Republican National Convention, respondent
Johnson participated in a political demonstration to protest the
policies of the Reagan administration and some Dallas-based
corporations. After a march through the city streets, Johnson
burned an American flag while protesters chanted. No one was
physically injured or threatened with injury, although several
witnesses were seriously offended by the flag burning. Johnson was
convicted of desecration of a venerated object in violation of a
Texas statute, and a state court of appeals affirmed. However, the
Texas Court of Criminal Appeals reversed, holding that the State,
consistent with the First Amendment, could not punish Johnson for
burning the flag in these circumstances. The court first found that
Johnson's burning of the flag was expressive conduct protected by
the First Amendment. The court concluded that the State could not
criminally sanction flag desecration in order to preserve the flag
as a symbol of national unity. It also held that the statute did
not meet the State's goal of preventing breaches of the peace,
since it was not drawn narrowly enough to encompass only those flag
burnings that would likely result in a serious disturbance, and
since the flag burning in this case did not threaten such a
reaction. Further, it stressed that another Texas statute
prohibited breaches of the peace and could be used to prevent
disturbances without punishing this flag desecration. Held: Johnson's conviction for flag desecration is
inconsistent with the First Amendment. Pp. 491 U. S.
402 -420.

															(a) Under the circumstances, Johnson's burning of the flag
constituted expressive conduct, permitting him to invoke the First
Amendment. The State conceded that the conduct was expressive.
Occurring as it did at the end of a demonstration coinciding with
the Republican National Convention, the expressive, overtly
political nature of the conduct was both intentional and
overwhelmingly apparent. Pp. 491 U. S.
402 -406.

															(b) Texas has not asserted an interest in support of Johnson's
conviction that is unrelated to the suppression of expression and
would therefore permit application of the test set forth in United States v. O'Brien, 391 U.
S. 367 , whereby an important governmental interest in
regulating nonspeech can justify incidental limitations on First
Amendment freedoms when speech and nonspeech elements are combined
in the same course of conduct. An interest in preventing breaches
of the peace is not implicated on this record. Expression may not
be prohibited Page 491 U. S. 398 on the basis that an audience that takes serious offense to the
expression may disturb the peace, since the Government cannot
assume that every expression of a provocative idea will incite a
riot, but must look to the actual circumstances surrounding the
expression. Johnson's expression of dissatisfaction with the
Federal Government's policies also does not fall within the class
of "fighting words" likely to be seen as a direct personal insult
or an invitation to exchange fisticuffs. This Court's holding does
not forbid a State to prevent "imminent lawless action" and, in
fact, Texas has a law specifically prohibiting breaches of the
peace. Texas' interest in preserving the flag as a symbol of
nationhood and national unity is related to expression in this case
and, thus, falls outside the O'Brien test. Pp. 491 U. S.
406 -410.

															(c) The latter interest does not justify Johnson's conviction.
The restriction on Johnson's political expression is content based,
since the Texas statute is not aimed at protecting the physical
integrity of the flag in all circumstances, but is designed to
protect it from intentional and knowing abuse that causes serious
offense to others. It is therefore subject to "the most exacting
scrutiny." Boos v. Barry, 485 U.
S. 312 . 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. Pp. 491 U. S.
410 -422. 755
S.W.2d 92 , affirmed.

															BRENNAN, J., delivered the opinion of the Court, in which
MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J.,
filed a concurring opinion, post, p. 491 U. S. 420 .
REHNQUIST, C.J., filed a dissenting opinion, in which WHITE and
O'CONNOR, JJ., joined, post, p. 491 U. S. 421 .
STEVENS, J., filed a dissenting opinion, post, p. 491 U. S.
436 . Page 491 U. S. 399 JUSTICE BRENNAN delivered the opinion of the Court.

															After publicly burning an American flag as a means of political
protest, Gregory Lee Johnson was convicted of desecrating a flag in
violation of Texas law. This case presents the question whether his
conviction is consistent with the First Amendment. We hold that it
is not. I While the Republican National Convention was taking place in
Dallas in 1984, respondent Johnson participated in a political
demonstration dubbed the "Republican War Chest Tour." As explained
in literature distributed by the demonstrators and in speeches made
by them, the purpose of this event was to protest the policies of
the Reagan administration and of certain Dallas-based corporations.
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.

															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." After the
demonstrators dispersed, a witness to the flag burning collected
the flag's remains and buried them in his backyard. No one was
physically injured or threatened with injury, though several
witnesses testified that they had been seriously offended by the
flag burning. Page 491 U. S. 400 Of the approximately 100 demonstrators, Johnson alone was
charged with a crime. The only criminal offense with which he was
charged was the desecration of a venerated object in violation of
Tex.Penal Code Ann. § 42.09(a)(3) (1989). [ Footnote 1 ] After a trial, he was convicted, sentenced
to one year in prison, and fined $2,000. The Court of Appeals for
the Fifth District of Texas at Dallas affirmed Johnson's
conviction, 706 S.W.2d 120 (1986), but the Texas Court of Criminal
Appeals reversed, 755
S.W.2d 92 (1988), holding that the State could not, consistent
with the First Amendment, punish Johnson for burning the flag in
these circumstances.

															The Court of Criminal Appeals began by recognizing that
Johnson's conduct was symbolic speech protected by the First
Amendment:

															"Given the context of an organized demonstration, speeches,
slogans, and the distribution of literature, anyone who observed
appellant's act would have understood the message that appellant
intended to convey. The act for which appellant was convicted was
clearly 'speech' contemplated by the First Amendment." Id. at 95. To justify Johnson's conviction for engaging
in symbolic speech, the State asserted two interests: preserving
the flag as a symbol of national unity and preventing breaches of
the peace. The Court of Criminal Appeals held that neither interest
supported his conviction. Page 491 U. S. 401 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. Therefore, that very same government cannot carve out a
symbol of unity and prescribe a set of approved messages to be
associated with that symbol when it cannot mandate the status or
feeling the symbol purports to represent."

															755 S.W.2d at 97. Noting that the State had not shown that the
flag was in "grave and immediate danger," Barnette, supra, at 639, of being stripped of its symbolic value, the Texas court
also decided that the flag's special status was not endangered by
Johnson's conduct. 755 S.W.2d at 97.

															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. at 96. The court also stressed that another Texas
statute, Tex.Penal Code Ann. § 42.01 (1989), prohibited breaches of
the peace. Citing Boos v. Barry, 485 U.
S. 312 (1988), the court decided that § 42.01
demonstrated Texas' ability to prevent disturbances of the peace
without punishing this flag desecration. 755 S.W.2d at 96. Page 491 U. S. 402 Because it reversed Johnson's conviction on the ground that §
42.09 was unconstitutional as applied to him, the state court did
not address Johnson's argument that the statute was, on its face,
unconstitutionally vague and overbroad. We granted certiorari, 488
U.S. 907 (1988), and now affirm. II Johnson was convicted of flag desecration for burning the flag,
rather than for uttering insulting words. [ Footnote 2 ] This fact Page 491 U. S. 403 somewhat complicates our consideration of his conviction under
the First Amendment. We must first determine whether Johnson's
burning of the flag constituted expressive conduct, permitting him
to invoke the First Amendment in challenging his conviction. See, e.g., Spence v. Washington, 418 U.
S. 405 , 418 U. S.
409 -411 (1974). If his conduct was expressive, we next
decide whether the State's regulation is related to the suppression
of free expression. See, e.g., United States v. O'Brien , 391 U. S. 367 , 391 U. S. 377 (1968); Spence, supra, at 418 U. S. 414 ,
n. 8. If the State's regulation is not related to expression, then
the less stringent standard we announced in United States v.
O'Brien for regulations of noncommunicative conduct controls. See O'Brien, supra, at 391 U. S. 377 .
If it is, then we are outside of O'Brien 's test, and we
must ask whether this interest justifies Johnson's conviction under
a more demanding standard. [ Footnote 3 ] See Spence, supra, at 418 U. S. 411 .
A Page 491 U. S. 404 third possibility is that the State's asserted interest is
simply not implicated on these facts, and, in that event, the
interest drops out of the picture. See 418 U.S. at 418 U. S. 414 ,
n. 8.

															The First Amendment literally forbids the abridgment only of
"speech," but we have long recognized that its protection does not
end at the spoken or written word. While we have rejected

															"the view that an apparently limitless variety of conduct can be
labeled 'speech' whenever the person engaging in the conduct
intends thereby to express an idea," United States v. O'Brien, supra, at 391 U. S. 376 ,
we have acknowledged that conduct may be "sufficiently imbued with
elements of communication to fall within the scope of the First and
Fourteenth Amendments," Spence, supra, at 418 U. S.
409 .

															In deciding whether particular conduct possesses sufficient
communicative elements to bring the First Amendment into play, we
have asked whether

															"[a]n intent to convey a particularized message was present, and
[whether] the likelihood was great that the message would be
understood by those who viewed it."

															418 U.S. at 418 U. S.
410 -411. Hence, we have recognized the expressive nature
of students' wearing of black armbands to protest American military
involvement in Vietnam, Tinker v. Des Moines Independent
Community School Dist., 393 U. S. 503 , 393 U. S. 505 (1969); of a sit-in by blacks in a "whites only" area to protest
segregation, Brown v. Louisiana, 383 U.
S. 131 , 383 U. S.
141 -142 (1966); of the wearing of American military
uniforms in a dramatic presentation criticizing American
involvement in Vietnam, Schacht v. United States, 398 U. S. 58 (1970); and of picketing about a wide variety of causes, see,
e.g., Food Employees v. Logan Valley Plaza, Inc., 391 U.
S. 308 , 391 U. S.
313 -314 (1968); United States v. Grace, 461 U. S. 171 , 461 U. S. 176 (1983).

															Especially pertinent to this case are our decisions recognizing
the communicative nature of conduct relating to flags. Attaching a
peace sign to the flag, Spence, supra, at 418 U. S.
409 -410; refusing to salute the flag, Barnette, 319 U.S. at 319 U. S. 632 ;
and displaying a red flag, Stromberg v. California, 283 U. S. 359 , Page 491 U. S. 405 283 U. S.
368 -369 (1931), we have held, all may find shelter under
the First Amendment. See also Smith v. Goguen, 415 U. S. 566 , 415 U. S. 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." Id. at 415 U. S. 603 (REHNQUIST, J., dissenting). Thus, we have observed:

															"[T]he flag salute is a form of utterance. 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." Barnette, supra, at 319 U. S. 632 .
Pregnant with expressive content, the flag as readily signifies
this Nation as does the combination of letters found in
"America."

															We have not automatically concluded, however, that any action
taken with respect to our flag is expressive. Instead, in
characterizing such action for First Amendment purposes, we have
considered the context in which it occurred. In Spence, for example, we emphasized that Spence's taping of a peace sign to
his flag was "roughly simultaneous with and concededly triggered by
the Cambodian incursion and the Kent State tragedy." 418 U.S. at 418 U. S. 410 .
The State of Washington had conceded, in fact, that Spence's
conduct was a form of communication, and we stated that "the
State's concession is inevitable on this record." Id. at 418 U. S.
409 .

															The State of Texas conceded for purposes of its oral argument in
this case that Johnson's conduct was expressive conduct, Tr. of
Oral Arg. 4, and this concession seems to us as Page 491 U. S. 406 prudent as was Washington's in Spence. Johnson burned
an American flag as part -- indeed, as the culmination -- of a
political demonstration that coincided with the convening of the
Republican Party and its renomination of Ronald Reagan for
President. The expressive, overtly political nature of this conduct
was both intentional and overwhelmingly apparent. At his trial,
Johnson explained his reasons for burning the flag as follows:

															"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."

															5 Record 656. In these circumstances, Johnson's burning of the
flag was conduct "sufficiently imbued with elements of
communication," Spence, 418 U.S. at 418 U. S. 409 ,
to implicate the First Amendment. III The government generally has a freer hand in restricting
expressive conduct than it has in restricting the written or spoken
word. See O'Brien, 391 U.S. at 391 U. S.
376 -377; Clark v. Community for Creative
Non-Violence, 468 U. S. 288 , 468 U. S. 293 (1984); Dallas v. Stanglin, 490 U. S.
19 , 490 U. S. 25 (1989). It may not, however, proscribe particular conduct because it has expressive elements.

															"[W]hat might be termed the more generalized guarantee of
freedom of expression makes the communicative nature of conduct an
inadequate basis for singling out that conduct for proscription. 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." Community for Creative Non-Violence v. Watt, 227
U.S.App.D.C. 19, 55-56, 703 F.2d 586, 622-623 (1983) (Scalia, J.,
dissenting) (emphasis in original), rev'd sub nom. Clark v.
Community for Creative Non-Violence, supra. It is, in short,
not simply the verbal or nonverbal nature of the expression, but
the governmental Page 491 U. S. 407 interest at stake, that helps to determine whether a restriction
on that expression is valid.

															Thus, although we have recognized that, where

															"'speech' and 'nonspeech' elements are combined in the same
course of conduct, a sufficiently important governmental interest
in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms," O'Brien, supra, at 391 U. S. 376 ,
we have limited the applicability of O'Brien's relatively
lenient standard to those cases in which "the governmental interest
is unrelated to the suppression of free expression." Id. at 391 U. S. 377 ; see also Spence, 418 U.S. at 418 U. S. 414 ,
n. 8. In stating, moreover, that O'Brien's test "in the
last analysis is little, if any, different from the standard
applied to time, place, or manner restrictions," Clark,
supra, at 468 U. S. 298 ,
we have highlighted the requirement that the governmental interest
in question be unconnected to expression in order to come under O'Brien's less demanding rule.

															In order to decide whether O'Brien's test applies here,
therefore, we must decide whether Texas has asserted an interest in
support of Johnson's conviction that is unrelated to the
suppression of expression. If we find that an interest asserted by
the State is simply not implicated on the facts before us, we need
not ask whether O'Brien's test applies. See Spence,
supra, at 418 U. S. 414 ,
n. 8. The State offers two separate interests to justify this
conviction: preventing breaches of the peace and preserving the
flag as a symbol of nationhood and national unity. We hold that the
first interest is not implicated on this record, and that the
second is related to the suppression of expression. A Texas claims that its interest in preventing breaches of the
peace justifies Johnson's conviction for flag desecration.
[ Footnote 4 ] Page 491 U. S. 408 However, no disturbance of the peace actually occurred or
threatened to occur because of Johnson's burning of the flag.
Although the State stresses the disruptive behavior of the
protestors during their march toward City Hall, Brief for
Petitioner 34-36, it admits that "no actual breach of the peace
occurred at the time of the flagburning or in response to the
flagburning." Id. at 34. The State's emphasis on the
protestors' disorderly actions prior to arriving at City Hall is
not only somewhat surprising, given that no charges were brought on
the basis of this conduct, but it also fails to show that a
disturbance of the peace was a likely reaction to Johnson's
conduct. The only evidence offered by the State at trial to show
the reaction to Johnson's actions was the testimony of several
persons who had been seriously offended by the flag burning. Id. at 6-7.

															The State's position, therefore, amounts to a claim that an
audience that takes serious offense at particular expression is
necessarily likely to disturb the peace, and that the expression
may be prohibited on this basis. [ Footnote 5 ] Our precedents do not countenance such a
presumption. On the contrary, they recognize that a principal

															"function of free speech under our system of government is to
invite dispute. It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with
conditions as they are, or Page 491 U. S. 409 even stirs people to anger." Terminiello v. Chicago, 337 U. S.
1 , 337 U. S. 4 (1949). See also Cox v. Louisiana, 379 U.
S. 536 , 379 U. S. 551 (1965); Tinker v. Des Moines Independent Community School
Dist., 393 U.S. at 393 U. S.
508 -509; Coates v. Cincinnati, 402 U.
S. 611 , 402 U. S. 615 (1971); Hustler Magazine, Inc. v. Falwell, 485 U. S.
46 , 485 U. S. 55 -56
(1988). It would be odd indeed to conclude both that "if
it is the speaker's opinion that gives offense, that consequence is
a reason for according it constitutional protection," FCC v.
Pacifica Foundation, 438 U. S. 726 , 438 U. S. 745 (1978) (opinion of STEVENS, J.), and that the Government
may ban the expression of certain disagreeable ideas on the
unsupported presumption that their very disagreeableness will
provoke violence.

															Thus, we have not permitted the government to assume that every
expression of a provocative idea will incite a riot, but have
instead required careful consideration of the actual circumstances
surrounding such expression, asking whether the expression "is
directed to inciting or producing imminent lawless action and is
likely to incite or produce such action." Brandenburg v.
Ohio, 395 U. S. 444 , 395 U. S. 447 (1969) (reviewing circumstances surrounding rally and speeches by
Ku Klux Klan). To accept Texas' arguments that it need only
demonstrate "the potential for a breach of the peace," Brief for
Petitioner 37, and that every flag burning necessarily possesses
that potential, would be to eviscerate our holding in Brandenburg. This we decline to do.

															Nor does Johnson's expressive conduct fall within that small
class of "fighting words" that are "likely to provoke the average
person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New Hampshire, 315 U.
S. 568 , 315 U. S. 574 (1942). No reasonable onlooker would have regarded Johnson's
generalized expression of dissatisfaction with the policies of the
Federal Government as a direct personal insult or an invitation to
exchange fisticuffs. See id. at 315 U. S.
572 -573; Cantwell v. Connecticut, 310 U.
S. 296 , 310 U. S. 309 (1940); FCC v. Pacifica Foundation, supra, at 438 U. S. 745 (opinion of STEVENS, J.). Page 491 U. S. 410 We thus conclude that the State's interest in maintaining order
is not implicated on these facts. The State need not worry that our
holding will disable it from preserving the peace. We do not
suggest that the First Amendment forbids a State to prevent
"imminent lawless action." Brandenburg, supra, at 395 U. S. 447 .
And, in fact, Texas already has a statute specifically prohibiting
breaches of the peace, Tex.Penal Code Ann. § 42.01 (1989), which
tends to confirm that Texas need not punish this flag desecration
in order to keep the peace. See Boos v. Barry, 485 U.S. at 485 U. S.
327 -329. B The State also asserts an interest in preserving the flag as a
symbol of nationhood and national unity. In Spence, we
acknowledged that the government's interest in preserving the
flag's special symbolic value "is directly related to expression in
the context of activity" such as affixing a peace symbol to a flag.
418 U.S. at 418 U. S. 414 ,
n. 8. We are equally persuaded that this interest is related to
expression in the case of Johnson's burning of the flag. The State,
apparently, is concerned that such conduct will lead people to
believe either that the flag does not stand for nationhood and
national unity, but instead reflects other, less positive concepts,
or that the concepts reflected in the flag do not in fact exist,
that is, that we do not enjoy unity as a Nation. These concerns
blossom only when a person's treatment of the flag communicates
some message, and thus are related "to the suppression of free
expression" within the meaning of O'Brien. We are thus
outside of O'Brien's test altogether. IV It remains to consider whether the State's interest in
preserving the flag as a symbol of nationhood and national unity
justifies Johnson's conviction.

															As in Spence, "[w]e are confronted with a case of
prosecution for the expression of an idea through activity," and
"[a]ccordingly, we must examine with particular care the
interests Page 491 U. S. 411 advanced by [petitioner] to support its prosecution." 418 U.S.
at 418 U. S. 411 .
Johnson was not, we add, prosecuted for the expression of just any
idea; he was prosecuted for his expression of dissatisfaction with
the policies of this country, expression situated at the core of
our First Amendment values. See, e.g., Boos v. Barry,
supra, at 485 U. S. 318 ; Frisby v. Schultz, 487 U. S. 474 , 487 U. S. 479 (1988).

															Moreover, Johnson was prosecuted because he knew that his
politically charged expression would cause "serious offense." 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. [ Footnote 6 ] Texas concedes as much:

															"Section 42.09(b) reaches only those severe acts of physical
abuse of the flag carried out in a way likely to be offensive. The
statute mandates intentional or knowing abuse, that is, the kind of
mistreatment that is not innocent, but rather is intentionally
designed to seriously offend other individuals." Id. at 44.

															Whether Johnson's treatment of the flag violated Texas law thus
depended on the likely communicative impact of his expressive
conduct. [ Footnote 7 ] Our
decision in Boos v. Barry, supra, Page 491 U. S. 412 tells us that this restriction on Johnson's expression is
content-based. In Boos, we considered the
constitutionality of a law prohibiting

															"the display of any sign within 500 feet of a foreign embassy if
that sign tends to bring that foreign government into 'public
odium' or 'public disrepute.'" Id. at 485 U. S. 315 .
Rejecting the argument that the law was content-neutral because it
was justified by "our international law obligation to shield
diplomats from speech that offends their dignity," id. at 485 U. S. 320 ,
we held that "[t]he emotive impact of speech on its audience is not
a secondary effect'" unrelated to the content of the expression
itself. Id. at 485 U. S. 321 (plurality opinion); see also id. at 485 U. S. 334 (BRENNAN, J., concurring in part and concurring in
judgment). According to the principles announced in Boos, Johnson's political expression was restricted because of the
content of the message he conveyed. We must therefore subject the
State's asserted interest in preserving the special symbolic
character of the flag to "the most exacting scrutiny." Boos v.
Barry, 485 U.S. at 485 U. S. 321 .
[ Footnote 8 ] Page 491 U. S. 413 Texas argues that its interest in preserving the flag as a
symbol of nationhood and national unity survives this close
analysis. Quoting extensively from the writings of this Court
chronicling the flag's historic and symbolic role in our society,
the State emphasizes the " special place"' reserved for the flag
in our Nation. Brief for Petitioner 22, quoting Smith v.
Goguen, 415 U.S. at 415 U. S. 601 (REHNQUIST, J., dissenting). The State's argument is not that it
has an interest simply in maintaining the flag as a symbol of something, no matter what it symbolizes; indeed, if that
were the State's position, it would be difficult to see how that
interest is endangered by highly symbolic conduct such as
Johnson's. Rather, the State's claim is that it has an interest in
preserving the flag as a symbol of nationhood and national unity, a symbol with a determinate range of
meanings. Brief for Petitioner 20-24. According to Texas, if one
physically treats the flag in a way that would tend to cast doubt
on either the idea that nationhood and national unity are the
flag's referents or that national unity actually exists, the
message conveyed thereby is a harmful one, and therefore may be
prohibited. [ Footnote
9 ] Page 491 U. S. 414 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. See, e.g., Hustler Magazine v. Falwell, 485
U.S. at 485 U. S. 55 -56; City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 , 466 U. S. 804 (1984); Bolger v. Youngs Drug Products Corp., 463 U. S.
60 , 463 U. S. 65 , 463 U. S. 72 (1983); Carey v. Brown, 447 U. S. 455 , 447 U. S.
462 -463 (1980); FCC v. Pacifica Foundation, 438
U.S. at 438 U. S.
745 -746; Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 63 -65, 427 U. S. 67 -68
(1976) (plurality opinion); Buckley v. Valeo, 424 U. S.
1 , 424 U. S. 16 -17
(1976); Grayned v. Rockford, 408 U.
S. 104 , 408 U. S. 115 (1972); Police Dept. of Chicago v. Mosley, 408 U. S.
92 , 408 U. S. 95 (1972); Bachellar v. Maryland, 397 U.
S. 564 , 397 U. S. 567 (1970); O'Brien, 391 U.S. at 391 U. S. 382 ; Brown v. Louisiana, 383 U.S. at 383 U. S.
142 -143; Stromberg v. California, 283 U.S. at 283 U. S.
368 -369.

															We have not recognized an exception to this principle even where
our flag has been involved. In Street v. New York, 394 U. S. 576 (1969), we held that a State may not criminally punish a person for
uttering words critical of the flag. Rejecting the argument that
the conviction could be sustained on the ground that Street had
"failed to show the respect for our national symbol which may
properly be demanded of every citizen," we concluded that

															"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." Id. at 394 U. S. 593 ,
quoting Barnette, 319 U.S. at 319 U. S. 642 .
Nor may the government, we have held, compel conduct that would
evince respect for the flag.

															"To sustain the compulsory flag salute, we are required to say
that a Bill of Rights which guards the individual's right to speak
his own mind left it open to public authorities to compel him to
utter what is not in his mind." Id. at 319 U. S.
634 . Page 491 U. S. 415 In holding in Barnette that the Constitution did not
leave this course open to the government, Justice Jackson described
one of our society's defining principles in words deserving of
their frequent repetition:

															"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." Id. at 319 U. S. 642 .
In Spence, we held that the same interest asserted by
Texas here was insufficient to support a criminal conviction under
a flag-misuse statute for the taping of a peace sign to an American
flag.

															"Given the protected character of [ Spence's ] expression
and in light of the fact that no interest the State may have in
preserving the physical integrity of a privately owned flag was
significantly impaired on these facts,"

															we held, "the conviction must be invalidated." 418 U.S. at 418 U. S. 415 . See also Goguen, 415 U.S. at 415 U. S. 588 (WHITE, J., concurring in judgment) (to convict person who had sewn
a flag onto the seat of his pants for "contemptuous" treatment of
the flag would be "[t]o convict not to protect the physical
integrity or to protect against acts interfering with the proper
use of the flag, but to punish for communicating ideas unacceptable
to the controlling majority in the legislature").

															In short, nothing in our precedents suggests that a State may
foster its own view of the flag by prohibiting expressive conduct
relating to it. [ Footnote
10 ] To bring its argument outside our Page 491 U. S. 416 precedents, Texas attempts to convince us that, even if its
interest in preserving the flag's symbolic role does not allow it
to prohibit words or some expressive conduct critical of the flag,
it does permit it to forbid the outright destruction of the flag.
The State's argument cannot depend here on the distinction between
written or spoken words and nonverbal conduct. That distinction, we
have shown, is of no moment where the nonverbal conduct is
expressive, as it is here, and where the regulation of that conduct
is related to expression, as it is here. See supra at 491 U. S.
402 -403. In addition, both Barnette and Spence involved expressive conduct, not only verbal
communication, and both found that conduct protected.

															Texas' focus on the precise nature of Johnson's expression,
moreover, misses the point of our prior decisions: their enduring
lesson, that the government may not prohibit expression simply
because it disagrees with its message, is not dependent on the
particular mode in which one chooses to express an idea. [ Footnote 11 ] If we were to hold that
a State may forbid flag burning wherever it is likely to endanger
the flag's symbolic role, but allow it wherever burning a flag
promotes that role -- as where, for example, a person ceremoniously
burns a dirty flag -- we would be saying that when it comes to
impairing the flag's physical integrity, the flag itself may be
used as Page 491 U. S. 417 a symbol -- as a substitute for the written or spoken word or a
"short cut from mind to mind" -- only in one direction. We would be
permitting a State to "prescribe what shall be orthodox" by saying
that one may burn the flag to convey one's attitude toward it and
its referents only if one does not endanger the flag's
representation of nationhood and national unity.

															We never before have held that the Government may ensure that a
symbol be used to express only one view of that symbol or its
referents. Indeed, in Schacht v. 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 398 U. S. 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 398 U. S.
63 .

															We perceive no basis on which to hold that the principle
underlying our decision in Schacht does not apply to this
case. To conclude that the government may permit designated symbols
to be used to communicate only a limited set of messages would be
to enter territory having no discernible or defensible boundaries.
Could the government, on this theory, prohibit the burning of state
flags? Of copies of the Presidential seal? Of the Constitution? In
evaluating these choices under the First Amendment, how would we
decide which symbols were sufficiently special to warrant this
unique status? To do so, we would be forced to consult our own
political preferences, and impose them on the citizenry, in the
very way that the First Amendment forbids us to do. See Carey
v. Brown, 447 U.S. at 447 U. S. 466 -467.

															There is, moreover, no indication -- either in the text of the
Constitution or in our cases interpreting it -- that a separate
juridical category exists for the American flag alone. Indeed, we
would not be surprised to learn that the persons Page 491 U. S. 418 who framed our Constitution and wrote the Amendment that we now
construe were not known for their reverence for the Union Jack. The
First Amendment does not guarantee that other concepts virtually
sacred to our Nation as a whole -- such as the principle that
discrimination on the basis of race is odious and destructive --
will go unquestioned in the marketplace of ideas. See
Brandenburg v. Ohio, 395 U. S. 444 (1969). We decline, therefore, to create for the flag an exception
to the joust of principles protected by the First Amendment.

															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 418 U. S. 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. Tr. of
Oral Arg. 38. Congress has, for example, enacted precatory
regulations describing the proper treatment of the flag, see 36 U.S.C. §§ 173-177, and we cast no doubt on the
legitimacy of its interest in making such recommendations. To say
that the government has an interest in encouraging proper treatment
of the flag, however, is not to say that it may criminally punish a
person for burning a flag as a means of political protest.

															"National unity as an end which officials may foster by
persuasion and example is not in question. The problem is whether,
under our Constitution, compulsion as here employed is a
permissible means for its achievement." Barnette, 319 U.S. at 319 U. S.
640 .

															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 Page 491 U. S. 419 man will change our Nation's attitude towards its flag. See
Abrams v. United States, 250 U. S. 616 , 250 U. S. 628 (1919) (Holmes, J., dissenting). Indeed, Texas' argument that the
burning of an American flag " is an act having a high likelihood
to cause a breach of the peace,'" Brief for Petitioner 31, quoting Sutherland v. DeWulf, 323 F.
Supp. 740 , 745 (SD Ill.1971) (citation omitted), and its
statute's implicit assumption that physical mistreatment of the
flag will lead to "serious offense," tend to confirm that the
flag's special role is not in danger; if it were, no one would riot
or take offense because a flag had been burned. 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. Indeed, one
of the proudest images of our flag, the one immortalized in our own
national anthem, is of the bombardment it survived at Fort McHenry.
It is the Nation's resilience, not its rigidity, that Texas sees
reflected in the flag -- and it is that resilience that we reassert
today.

															The way to preserve the flag's special role is not to punish
those who feel differently about these matters. It is to persuade
them that they are wrong.

															"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. If there be time to expose through discussion the
falsehood and fallacies, to avert the evil by the processes of
education, the remedy to bee applied is more speech, not enforced
silence." Whitney v. California, 274 U.
S. 357 , 274 U. S. 377 (1927) (Brandeis, J., concurring). And, precisely because it is our
flag that is involved, one's response to the flag-burner Page 491 U. S. 420 may exploit the uniquely persuasive power of the flag itself. We
can imagine no more appropriate response to burning a flag than
waving one's own, no better way to counter a flag burner's message
than by saluting the flag that burns, no surer means of preserving
the dignity even of the flag that burned than by -- as one witness
here did -- according its remains a respectful burial. We do not
consecrate the flag by punishing its desecration, for in doing so
we dilute the freedom that this cherished emblem represents. V Johnson was convicted for engaging in expressive conduct. The
State's interest in preventing breaches of the peace does not
support his conviction, because Johnson's conduct did not threaten
to disturb the peace. Nor does the State's interest in preserving
the flag as a symbol of nationhood and national unity justify his
criminal conviction for engaging in political expression. The
judgment of the Texas Court of Criminal Appeals is therefore Affirmed. [ Footnote 1 ]

															Tex.Penal Code Ann. § 42.09 (1989) provides in full:

															"§ 42.09. Desecration of Venerated Object"

															"(a) A person commits an offense if he intentionally or
knowingly desecrates:"

															"(1) a public monument;"

															"(2) a place of worship or burial; or"

															"(3) a state or national flag."

															"(b) For purposes of this section, 'desecrate' means deface,
damage, or otherwise physically mistreat in a way that the actor
knows will seriously offend one or more persons likely to observe
or discover his action."

															"(c) An offense under this section is a Class A
misdemeanor."

															[ Footnote 2 ]

															Because the prosecutor's closing argument observed that Johnson
had led the protestors in chants denouncing the flag while it
burned, Johnson suggests that he may have been convicted for
uttering critical words, rather than for burning the flag. Brief
for Respondent 33-34. He relies on Street v. New York, 394 U. S. 576 , 394 U. S. 578 (1969), in which we reversed a conviction obtained under a New York
statute that prohibited publicly defying or casting contempt on the
flag "either by words or act" because we were persuaded that the
defendant may have been convicted for his words alone. Unlike the
law we faced in Street, however, the Texas flag
desecration statute does not on its face permit conviction for
remarks critical of the flag, as Johnson himself admits. See Brief for Respondent 34. 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.'"

															Brief for Respondent 2, n. 2, quoting 1 Record 49. The State
offered this instruction because Johnson's defense was that he was
not the person who had burned the flag. Johnson did not object to
this instruction at trial, and although he challenged it on direct
appeal, he did so only on the ground that there was insufficient
evidence to support it. 706 S.W.2d 120, 124 (Tex.App.1986). It is
only in this Court that Johnson has argued that the law-of-parties
instruction might have led the jury to convict him for his words
alone. Even if we were to find that this argument is properly
raised here, however, we would conclude that it has no merit in
these circumstances. The instruction would not have permitted a
conviction merely for the pejorative nature of Johnson's words, and
those words themselves did not encourage the burning of the flag,
as the instruction seems to require. Given the additional fact that
"the bulk of the State's argument was premised on Johnson's
culpability as a sole actor," ibid., we find it too
unlikely that the jury convicted Johnson on the basis of this
alternative theory to consider reversing his conviction on this
ground.

															[ Footnote 3 ]

															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. §
42.09(b) (1989), this fact does not necessarily mean that the
statute applies only to expressive conduct protected by the First
Amendment. Cf. Smith v. Goguen, 415 U.
S. 566 , 415 U. S. 588 (1974) (WHITE, J., concurring in judgment) (statute prohibiting
"contemptuous" treatment of flag encompasses only expressive
conduct). 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. Because the prosecution of a person who had not
engaged in expressive conduct would pose a different case, and
because this case may be disposed of on narrower grounds, we
address only Johnson's claim that § 42.09, as applied to political
expression like his, violates the First Amendment.

															[ Footnote 4 ]

															Relying on our decision in Boos v. Barry, 485 U.
S. 312 (1988), Johnson argues that this state interest
is related to the suppression of free expression within the meaning
of United States v. O'Brien, 391 U.
S. 367 (1968). He reasons that the violent reaction to
flag burnings feared by Texas would be the result of the message
conveyed by them, and that this fact connects the State's interest
to the suppression of expression. Brief for Respondent 12, n. 11.
This view has found some favor in the lower courts. See Monroe
v. State Court of Fulton County, 739 F.2d 568 574-575 (CA11
1984). Johnson's theory may overread Boos insofar as it
suggests that a desire to prevent a violent audience reaction is
"related to expression" in the same way that a desire to prevent an
audience from being offended is "related to expression." Because we
find that the State's interest in preventing breaches of the peace
is not implicated on these facts, however, we need not venture
further into this area.

															[ Footnote 5 ]

															There is, of course, a tension between this argument and the
State's claim that one need not actually cause serious offense in
order to violate § 42.09. See Brief for Petitioner 44.

															[ Footnote 6 ] Cf. Smith v. Goguen, 415 U.S. at 415 U. S.
590 -591 (BLACKMUN, J., dissenting) (emphasizing that
lower court appeared to have construed state statute so as to
protect physical integrity of the flag in all circumstances); id. at 415 U. S.
597 -598 (REHNQUIST, J., dissenting) (same).

															[ Footnote 7 ]

															Texas suggests that Johnson's conviction did not depend on the
onlookers' reaction to the flag burning, because § 42.09 is
violated only when a person physically mistreats the flag in a way
that he " knows will seriously offend one or more persons
likely to observe or discover his action." Tex.Penal Code Ann. §
42.09(b) (1969) (emphasis added). "The serious offense'
language of the statute," Texas argues, "refers to an individual's
intent and to the manner in which the conduct is effectuated, not
to the reaction of the crowd." Brief for Petitioner 44. If the
statute were aimed only at the actor's intent, and not at the
communicative impact of his actions, however, there would be little
reason for the law to be triggered only when an audience is
"likely" to be present. At Johnson's trial, indeed, the State
itself seems not to have seen the distinction between knowledge and
actual communicative impact that it now stresses: it proved the
element of knowledge by offering the testimony of persons who had
in fact been seriously offended by Johnson's conduct. Id. at 6-7. In any event, we find the distinction between Texas'
statute and one dependent on actual audience reaction too precious
to be of constitutional significance. Both kinds of statutes
clearly are aimed at protecting onlookers from being offended by
the ideas expressed by the prohibited activity. [ Footnote 8 ]

															Our inquiry is, of course, bounded by the particular facts of
this case and by the statute under which Johnson was convicted.
There was no evidence that Johnson himself stole the flag he
burned, Tr. of Oral Arg. 17, nor did the prosecution or the
arguments urged in support of it depend on the theory that the flag
was stolen. Ibid. Thus, our analysis does not rely on the
way in which the flag was acquired, and nothing in our opinion
should be taken to suggest that one is free to steal a flag so long
as one later uses it to communicate an idea. We also emphasize that
Johnson was prosecuted only for flag desecration -- not
for trespass, disorderly conduct, or arson.

															[ Footnote 9 ]

															Texas claims that "Texas is not endorsing, protecting, avowing
or prohibiting any particular philosophy." Brief for Petitioner 29.
If Texas means to suggest that its asserted interest does not
prefer Democrats over Socialists, or Republicans over Democrats,
for example, then it is beside the point, for Johnson does not rely
on such an argument. He argues instead that the State's desire to
maintain the flag as a symbol of nationhood and national unity
assumes that there is only one proper view of the flag. Thus, if
Texas means to argue that its interest does not prefer any viewpoint over another, it is mistaken; surely one's attitude
toward the flag and its referents is a viewpoint.

															[ Footnote 10 ]

															Our decision in Halter v. Nebraska, 205 U. S.
34 (1907), addressing the validity of a state law
prohibiting certain commercial uses of the flag, is not to the
contrary. That case was decided "nearly 20 years before the Court
concluded that the First Amendment applies to the States by virtue
of the Fourteenth Amendment." Spence v. Washington, 418 U. S. 405 , 418 U. S. 413 ,
n. 7 (1974). More important, as we continually emphasized in Halter itself, that case involved purely commercial,
rather than political, speech. 205 U.S. at 205 U. S. 38 , 205 U. S. 41 , 205 U. S. 42 , 205 U. S.
45 .

															Nor does San Francisco Arts & Athletics, Inc. v. United
States Olympic Committee, 483 U. S. 522 , 483 U. S. 524 (1987), addressing the validity of Congress' decision to
"authoriz[e] the United States Olympic Committee to prohibit
certain commercial and promotional uses of the word Olympic,'"
relied upon by THE CHIEF JUSTICE's dissent, post at 491 U. S. 429 ,
even begin to tell us whether the government may criminally punish
physical conduct towards the flag engaged in as a means of
political protest. [ Footnote 11 ]

															THE CHIEF JUSTlCE's dissent appears to believe that Johnson's
conduct may be prohibited and, indeed, criminally sanctioned,
because "his act . . . conveyed nothing that could not have been
conveyed and was not conveyed just as forcefully in a dozen
different ways." Post at 491 U. S. 431 .
Not only does this assertion sit uneasily next to the dissent's
quite correct reminder that the flag occupies a unique position in
our society -- which demonstrates that messages conveyed without
use of the flag are not "just as forcefu[l]" as those conveyed with
it -- but it also ignores the fact that, in Spence, supra, we "rejected summarily" this very claim. See 418 U.S. at 418 U. S. 411 ,
n. 4.

															JUSTICE KENNEDY, concurring.

															I write not to qualify the words JUSTICE BRENNAN chooses so
well, for he says with power all that is necessary to explain our
ruling. I join his opinion without reservation, but with a keen
sense that this case, like others before us from time to time,
exacts its personal toll. This prompts me to add to our pages these
few remarks.

															The case before us illustrates better than most that the
judicial power is often difficult in its exercise. We cannot here
ask another Branch to share responsibility, as when the argument is
made that a statute is flawed or incomplete. For we are presented
with a clear and simple statute to be judged against a pure command
of the Constitution. The outcome can be laid at no door but
ours.

															The hard fact is that sometimes we must make decisions we do not
like. We make them because they are right, right Page 491 U. S. 421 in the sense that the law and the Constitution, as we see them,
compel the result. And so great is our commitment to the process
that, except in the rare case, we do not pause to express distaste
for the result, perhaps for fear of undermining a valued principle
that dictates the decision. This is one of those rare cases.

															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.

															CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE and JUSTICE
O'CONNOR join, dissenting.

															In holding this Texas statute unconstitutional, the Court
ignores Justice Holmes' familiar aphorism that "a page of history
is worth a volume of logic." New York Trust Co.
v. Page 491 U. S. 422 Eisner, 256 U. S. 345 , 256 U. S. 349 (1921). For more than 200 years, the American flag has occupied a
unique position as the symbol of our Nation, a uniqueness that
justifies a governmental prohibition against flag burning in the
way respondent Johnson did here.

															At the time of the American Revolution, the flag served to unify
the Thirteen Colonies at home while obtaining recognition of
national sovereignty abroad. Ralph Waldo Emerson's Concord Hymn
describes the first skirmishes of the Revolutionary War in these
lines:

															"By the rude bridge that arched the flood"

															"Their flag to April's breeze unfurled,"

															"Here once the embattled farmers stood"

															"And fired the shot heard round the world."

															During that time, there were many colonial and regimental flags,
adorned with such symbols as pine trees, beavers, anchors, and
rattlesnakes, bearing slogans such as "Liberty or Death," "Hope,"
"An Appeal to Heaven," and "Don't Tread on Me." The first
distinctive flag of the Colonies was the "Grand Union Flag" -- with
13 stripes and a British flag in the left corner -- which was flown
for the first time on January 2, 1776, by troops of the Continental
Army around Boston. By June 14, 1777, after we declared our
independence from England, the Continental Congress resolved:

															"That the flag of the thirteen United States be thirteen
stripes, alternate red and white: that the union be thirteen stars,
white in a blue field, representing a new constellation."

															8 Journal of the Continental Congress 1774-1789, p. 464 (W. Ford
ed.1907). One immediate result of the flag's adoption was that
American vessels harassing British shipping sailed under an
authorized national flag. Without such a flag, the British could
treat captured seamen as pirates and hang them summarily; with a
national flag, such seamen were treated as prisoners of war. Page 491 U. S. 423 During the War of 1812, British naval forces sailed up
Chesapeake Bay and marched overland to sack and burn the city of
Washington. They then sailed up the Patapsco River to invest the
city of Baltimore, but to do so it was first necessary to reduce
Fort McHenry in Baltimore Harbor. Francis Scott Key, a Washington
lawyer, had been granted permission by the British to board one of
their warships to negotiate the release of an American who had been
taken prisoner. That night, waiting anxiously on the British ship,
Key watched the British fleet firing on Fort McHenry. Finally, at
daybreak, he saw the fort's American flag still flying; the British
attack had failed. Intensely moved, he began to scribble on the
back of an envelope the poem that became our national anthem:

															"O say can you see by the dawn's early light"

															"What so proudly we hail'd at the twilight's last gleaming,"

															"Whose broad stripes & bright stars through the perilous
fight"

															"O'er the ramparts we watch'd, were so gallantly streaming?"

															"And the rocket's red glare, the bomb bursting in air,"

															"Gave proof through the night that our flag was still
there,"

															"O say does that star-spangled banner yet wave"

															"O'er the land of the free & the home of the brave?"

															The American flag played a central role in our Nation's most
tragic conflict, when the North fought against the South. The
lowering of the American flag at Fort Sumter was viewed as the
start of the war. G. Preble, History of the Flag of the United
States of America 453 (1880). The Southern States, to formalize
their separation from the Union, adopted the "Stars and Bars" of
the Confederacy. The Union troops marched to the sound of "Yes
We'll Rally Round The Flag Boys, We'll Rally Once Again." President
Abraham Lincoln refused proposals to remove from the Page 491 U. S. 424 American flag the stars representing the rebel States, because
he considered the conflict not a war between two nations, but an
attack by 11 States against the National Government. Id. at 411. By war's end, the American flag again flew over "an
indestructible union, composed of indestructible states." TeXas v.
White , 7 Wall. 700, 74 U. S. 725 (1869).

															One of the great stories of the Civil War is told in John
Greenleaf Whittier's poem, "Barbara Frietchie":

															Up from the meadows rich with corn,

															Clear in the cool September morn,

															The clustered spires of Frederick stand

															Green-walled by the hills of Maryland.

															Round about them orchards sweep,

															Apple- and peach-tree fruited deep,

															Fair as a garden of the Lord

															To the eyes of the famished rebel horde,

															On that pleasant morn of the early fall

															When Lee marched over the mountain wall, --

															Over the mountains winding down,

															Horse and foot, into Frederick town.

															Forty flags with their silver stars,

															Forty flags with their crimson bars,

															Flapped in the morning wind: the sun

															Of noon looked down, and saw not one.

															Up rose old Barbara Frietchie then,

															Bowed with her four-score years and ten;

															Bravest of all in Frederick town,

															She took up the flag the men hauled down;

															In her attic-window the staff she set,

															To show that one heart was loyal yet.

															Up the street came the rebel tread,

															Stonewall Jackson riding ahead.

															Under his slouched hat left and right

															He glanced: the old flag met his sight.

															"Halt!" -- the dust-brown ranks stood fast.

															"Fire!" -- out blazed the rifle-blast Page 491 U. S. 425 It shivered the window, pane and sash;

															It rent the banner with seam and gash.

															Quick, as it fell, from the broken staff

															Dame Barbara snatched the silken scarf;

															She leaned far out on the window-sill,

															And shook it forth with a royal will.

															"Shoot, if you must, this old gray head,

															But spare your country's flag," she said.

															A shade of sadness, a blush of shame,

															Over the face of the leader came;

															The nobler nature within him stirred

															To life at that woman's deed and word:

															"Who touches a hair of yon gray head

															Dies like a dog! March on!" he said.

															All day long through Frederick street

															Sounded the tread of marching feet:

															All day long that free flag tost

															Over the heads of the rebel host.

															Ever its torn folds rose and fell

															On the loyal winds that loved it well;

															And through the hill-gaps sunset light

															Shone over it with a warm good-night.

															Barbara Frietchie's work is o'er,

															And the Rebel rides on his raids no more.

															Honor to her! and let a tear

															Fall, for her sake, on Stonewall's bier.

															Over Barbara Frietchie's grave,

															Flag of Freedom and Union, wave!

															Peace and order and beauty draw

															Round thy symbol of light and law;

															And ever the stars above look down

															On thy stars below in Frederick town!

															In the First and Second World Wars, thousands of our countrymen
died on foreign soil fighting for the American cause. At Iwo Jima
in the Second World War, United States Marines fought hand to hand
against thousands of Page 491 U. S. 426 Japanese. By the time the Marines reached the top of Mount
Suribachi, they raised a piece of pipe upright and from one end
fluttered a flag. That ascent had cost nearly 6,000 American lives.
The Iwo Jima Memorial in Arlington National Cemetery memorializes
that event. President Franklin Roosevelt authorized the use of the
flag on labels, packages, cartons, and containers intended for
export as lend-lease aid, in order to inform people in other
countries of the United States' assistance. Presidential
Proclamation No. 2605, 58 Stat. 1126.

															During the Korean War, the successful amphibious landing of
American troops at Inchon was marked by the raising of an American
flag within an hour of the event. Impetus for the enactment of the
Federal Flag Desecration Statute in 1967 came from the impact of
flag burnings in the United States on troop morale in Vietnam.
Representative L. Mendel Rivers, then Chairman of the House Armed
Services Committee, testified that

															"The burning of the flag . . . has caused my mail to increase
100 percent from the boys in Vietnam, writing me and asking me what
is going on in America."

															Desecration of the Flag, Hearings on H.R. 271 before
Subcommittee No. 4 of the House Committee on the Judiciary, 90th
Cong., 1st Sess., 189 (1967). Representative Charles Wiggins
stated:

															"The public act of desecration of our flag tends to undermine
the morale of American troops. That this finding is true can be
attested by many Members who have received correspondence from
servicemen expressing their shock and disgust of such conduct."

															113 Cong.Rec. 16459 (1967).

															The flag symbolizes the Nation in peace as well as in war. It
signifies our national presence on battleships, airplanes, military
installations, and public buildings from the United States Capitol
to the thousands of county courthouses and city halls throughout
the country. Two flags are prominently placed in our courtroom.
Countless flags are placed by the graves of loved ones each year on
what was first called Page 491 U. S. 427 Decoration Day, and is now called Memorial Day. The flag is
traditionally placed on the casket of deceased members of the Armed
Forces, and it is later given to the deceased's family. 10 U.S.C.
§§ 1481, 1482. Congress has provided that the flag be flown at
half-staff upon the death of the President, Vice President, and
other government officials "as a mark of respect to their memory."
36 U.S.C. § 175(m). The flag identifies United States merchant
ships, 22 U.S.C. § 454, and "[t]he laws of the Union protect our
commerce wherever the flag of the country may float." United States v.
Guthrie , 17 How. 284, 309 (1855).

															No other American symbol has been as universally honored as the
flag. In 1931, Congress declared "The Star-Spangled Banner" to be
our national anthem. 36 U.S.C. § 170. In 1949, Congress declared
June 14th to be Flag Day. § 157. In 1987, John Philip Sousa's "The
Stars and Stripes Forever" was designated as the national march.
Pub.L. 101-186, 101 Stat. 1286. Congress has also established "The
Pledge of Allegiance to the Flag" and the manner of its
deliverance. 36 U.S.C. § 172. The flag has appeared as the
principal symbol on approximately 33 United States postal stamps
and in the design of at least 43 more, more times than any other
symbol. United States Postal Service, Definitive Mint Set 15
(1988).

															Both Congress and the States have enacted numerous laws
regulating misuse of the American flag. Until 1967, Congress left
the regulation of misuse of the flag up to the States. Now,
however, Title 18 U.S.C. § 700(a) provides that:

															"Whoever knowingly casts contempt upon any flag of the United
States by publicly mutilating, defacing, defiling, burning, or
trampling upon it shall be fined not more than $1,000 or imprisoned
for not more than one year, or both."

															Congress has also prescribed, inter alia, detailed
rules for the design of the flag, 4 U.S.C. § 1, the time and
occasion of flag's display, 36 U.S.C. § 174, the position and
manner of Page 491 U. S. 428 its display, § 175, respect for the flag, § 176, and conduct
during hoisting, lowering, and passing of the flag, § 177. With the
exception of Alaska and Wyoming, all of the States now have
statutes prohibiting the burning of the flag. [ Footnote 2/1 ] Most of the state statutes are
patterned after the Uniform Flag Act of 1917, which in § 3
provides:

															"No person shall publicly mutilate, deface, defile, defy,
trample upon, or by word or act cast contempt upon any such flag,
standard, color, ensign or shield."

															Proceedings of National Conference of Commissioners on Uniform
State Laws 323-324 (1917). Most were passed by the States at about
the time of World War I. Rosenblatt, Flag Desecration Statutes:
History and Analysis, 1972 Wash.U.L.Q.193, 197. Page 491 U. S. 429 The American flag, then, throughout more than 200 years of our
history, has come to be the visible symbol embodying our Nation. It
does not represent the views of any particular political party, and
it does not represent any particular political philosophy. The flag
is not simply another "idea" or "point of view" competing for
recognition in the marketplace of ideas. Millions and millions of
Americans regard it with an almost mystical reverence, regardless
of what sort of social, political, or philosophical beliefs they
may have. I cannot agree that the First Amendment invalidates the
Act of Congress, and the laws of 48 of the 50 States, which make
criminal the public burning of the flag.

															More than 80 years ago, in Halter v. Nebraska, 205 U. S. 34 (1907), this Court upheld the constitutionality of a Nebraska
statute that forbade the use of representations of the American
flag for advertising purposes upon articles of merchandise. The
Court there said:

															"For that flag every true American has not simply an
appreciation, but a deep affection. . . . Hence, it has often
occurred that insults to a flag have been the cause of war, and
indignities put upon it, in the presence of those who revere it,
have often been resented and sometimes punished on the spot." Id. at 41.

															Only two Terms ago, in San Francisco Arts & Athletics,
Inc. v. United States Olympic Committee, 483 U.
S. 522 (1987), the Court held that Congress could grant
exclusive use of the word "Olympic" to the United States Olympic
Committee. The Court thought that this

															"restrictio[n] on expressive speech properly [was] characterized
as incidental to the primary congressional purpose of encouraging
and rewarding the USOC's activities." Id. at 483 U. S. 536 .
As the Court stated,

															"when a word [or symbol] acquires value 'as the result of
organization and the expenditure of labor, skill, and money' by an
entity, that entity constitutionally may obtain a limited property
right in the word [or symbol]." Id. at 483 U. S. 532 ,
quoting International News Service v.
Associated Press , 248 Page 491 U. S. 430 U.S. 215, 248 U. S. 239 (1918). Surely Congress or the States may recognize a similar
interest in the flag.

															But the Court insists that the Texas statute prohibiting the
public burning of the American flag infringes on respondent
Johnson's freedom of expression. Such freedom, of course, is not
absolute. See Schenck v. United States, 249 U. S.
47 (1919). In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), a unanimous Court said:

															"Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances.
There are certain well defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or
'fighting' words -- those which, by their very utterance, inflict
injury or tend to incite an immediate breach of the peace. It has
been well observed that such utterances are no essential part of
any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality." Id. at 315 U. S.
571 -572 (footnotes omitted). The Court upheld
Chaplinsky's conviction under a state statute that made it unlawful
to "address any offensive, derisive or annoying word to any person
who is lawfully in any street or other public place." Id. at 315 U. S. 569 .
Chaplinsky had told a local marshal, "You are a God damned
racketeer" and a "damned Fascist and the whole government of
Rochester are Fascists or agents of Fascists." Ibid. Here it may equally well be said that the public burning of the
American flag by Johnson was no essential part of any exposition of
ideas, and at the same time it had a tendency to incite a breach of
the peace. Johnson was free to make any verbal denunciation of the
flag that he wished; indeed, he was Page 491 U. S. 431 free to burn the flag in private. He could publicly burn other
symbols of the Government or effigies of political leaders. He did
lead a march through the streets of Dallas, and conducted a rally
in front of the Dallas City Hall. He engaged in a "die-in" to
protest nuclear weapons. He shouted out various slogans during the
march, including: "Reagan, Mondale which will it be? Either one
means World War III"; "Ronald Reagan, killer of the hour, Perfect
example of U.S. power"; and "red, white and blue, we spit on you,
you stand for plunder, you will go under." Brief for Respondent 3.
For none of these acts was he arrested or prosecuted; it was only
when he proceeded to burn publicly an American flag stolen from its
rightful owner that he violated the Texas statute.

															The Court could not, and did not, say that Chaplinsky's
utterances were not expressive phrases -- they clearly and
succinctly conveyed an extremely low opinion of the addressee. The
same may be said of Johnson's public burning of the flag in this
case; it obviously did convey Johnson's bitter dislike of his
country. But his act, like Chaplinsky's provocative words, conveyed
nothing that could not have been conveyed and was not conveyed just
as forcefully in a dozen different ways. As with "fighting words,"
so with flag burning, for purposes of the First Amendment: It
is

															"no essential part of any exposition of ideas, and [is] of such
slight social value as a step to truth that any benefit that may be
derived from [it] is clearly outweighed"

															by the public interest in avoiding a probable breach of the
peace. The highest courts of several States have upheld state
statutes prohibiting the public burning of the flag on the grounds
that it is so inherently inflammatory that it may cause a breach of
public order. See, e.g., State v. Royal, 113 N. H. 224,
229, 305 A.2d 676, 680 (1973); State v.
Waterman, 190 N.W.2d 809 ,
811-812 (Iowa 1971); see also State v. Mitchell, 32 Ohio
App.2d 16, 30, 288 N.E.2d 216, 226 (1972). Page 491 U. S. 432 The result of the Texas statute is obviously to deny one in
Johnson's frame of mind one of many means of "symbolic speech." Far
from being a case of "one picture being worth a thousand words,"
flag burning is the equivalent of an inarticulate grunt or roar
that, it seems fair to say, is most likely to be indulged in not to
express any particular idea, but to antagonize others. Only five
years ago we said in City Council of Los Angeles v. Taxpayers
for Vincent, 466 U. S. 789 , 466 U. S. 812 (1984), that "the First Amendment does not guarantee the right to
employ every conceivable method of communication at all times and
in all places." The Texas statute deprived Johnson of only one
rather inarticulate symbolic form of protest -- a form of protest
that was profoundly offensive to many -- and left him with a full
panoply of other symbols and every conceivable form of verbal
expression to express his deep disapproval of national policy.
Thus, in no way can it be said that Texas is punishing him because
his hearers -- or any other group of people -- were profoundly
opposed to the message that he sought to convey. Such opposition is
no proper basis for restricting speech or expression under the
First Amendment. It was Johnson's use of this particular symbol,
and not the idea that he sought to convey by it or by his many
other expressions, for which he was punished.

															Our prior cases dealing with flag desecration statutes have left
open the question that the Court resolves today. In Street v.
New York, 394 U. S. 576 , 394 U. S. 579 (1969), the defendant burned a flag in the street, shouting "We
don't need no damned flag" and, "[i]f they let that happen to
Meredith, we don't need an American flag." The Court ruled that
since the defendant might have been convicted solely on the basis
of his words, the conviction could not stand, but it expressly
reserved the question whether a defendant could constitutionally be
convicted for burning the flag. Id. at 394 U. S.
581 .

															Chief Justice Warren, in dissent, stated:

															"I believe that the States and Federal Government do have the
power to protect the flag from acts of desecration and disgrace. .
. . [I]t is difficult Page 491 U. S. 433 for me to imagine that, had the Court faced this issue, it would
have concluded otherwise." Id. at 394 U. S. 605 .
Justices Black and Fortas also expressed their personal view that a
prohibition on flag burning did not violate the Constitution. See id. at 394 U. S. 610 (Black, J., dissenting) ("It passes my belief that anything in the
Federal Constitution bars a State from making the deliberate
burning of the American Flag an offense"); id. at 394 U. S.
615 -617 (Fortas, J., dissenting) ("[T]he States and the
Federal Government have the power to protect the flag from acts of
desecration committed in public. . . . [T]he flag is a special kind
of personality. Its use is traditionally and universally subject to
special rules and regulation. . . . A person may own' a flag,
but ownership is subject to special burdens and responsibilities. A
flag may be property, in a sense; but it is property burdened with
peculiar obligations and restrictions. Certainly . . . these
special conditions are not per se arbitrary or beyond
governmental power under our Constitution"). In Spence v. Washington, 418 U.
S. 405 (1974), the Court reversed the conviction of a
college student who displayed the flag with a peace symbol affixed
to it by means of removable black tape from the window of his
apartment. Unlike the instant case, there was no risk of a breach
of the peace, no one other than the arresting officers saw the
flag, and the defendant owned the flag in question. The Court
concluded that the student's conduct was protected under the First
Amendment, because

															"no interest the State may have in preserving the physical
integrity of a privately owned flag was significantly impaired on
these facts." Id. at 418 U. S. 415 .
The Court was careful to note, however, that the defendant "was not
charged under the desecration statute, nor did he permanently
disfigure the flag or destroy it." Ibid. In another related case, Smith v. Goguen, 415 U.
S. 566 (1974), the appellee, who wore a small flag on
the seat of his trousers, was convicted under a Massachusetts flag
misuse statute that subjected to criminal liability anyone who Page 491 U. S. 434 publicly. . . treats contemptuously the flag of the United
States." Id. at 415 U. S.
568 -569. The Court affirmed the lower court's reversal
of appellee's conviction, because the phrase "treats
contemptuously" was unconstitutionally broad and vague. Id. at 415 U. S. 576 .
The Court was again careful to point out that

															"[c]ertainly nothing prevents a legislature from defining with
substantial specificity what constitutes forbidden treatment of
United States flags." Id. at 415 U. S.
581 -582. See also id. at 415 U. S. 587 (WHITE, J., concurring in judgment) ("The flag is a national
property, and the Nation may regulate those who would make,
imitate, sell, possess, or use it. I would not question those
statutes which proscribe mutilation, defacement, or burning of the
flag or which otherwise protect its physical integrity, without
regard to whether such conduct might provoke violence. . . . There
would seem to be little question about the power of Congress to
forbid the mutilation of the Lincoln Memorial. . . . The flag is
itself a monument, subject to similar protection"); id. at 415 U. S. 591 (BLACKMUN, J., dissenting) ("Goguen's punishment was
constitutionally permissible for harming the physical integrity of
the flag by wearing it affixed to the seat of his pants").

															But the Court today will have none of this. The uniquely deep
awe and respect for our flag felt by virtually all of us are
bundled off under the rubric of "designated symbols," ante at 491 U. S. 417 ,
that the First Amendment prohibits the government from
"establishing." But the government has not "established" this
feeling; 200 years of history have done that. The government is
simply recognizing as a fact the profound regard for the American
flag created by that history when it enacts statutes prohibiting
the disrespectful public burning of the flag.

															The Court concludes its opinion with a regrettably patronizing
civics lecture, presumably addressed to the Members of both Houses
of Congress, the members of the 48 state legislatures that enacted
prohibitions against flag burning, and the troops fighting under
that flag in Vietnam who objected to its Page 491 U. S. 435 being burned:

															"The way to preserve the flag's special role is not to punish
those who feel differently about these matters. It is to persuade
them that they are wrong." Ante at 491 U. S. 419 .
The Court's role as the final expositor of the Constitution is well
established, but its role as a platonic guardian admonishing those
responsible to public opinion as if they were truant schoolchildren
has no similar place in our system of government. The cry of "no
taxation without representation" animated those who revolted
against the English Crown to found our Nation -- the idea that
those who submitted to government should have some say as to what
kind of laws would be passed. Surely one of the high purposes of a
democratic society is to legislate against conduct that is regarded
as evil and profoundly offensive to the majority of people --
whether it be murder, embezzlement, pollution, or flagburning.

															Our Constitution wisely places limits on powers of legislative
majorities to act, but the declaration of such limits by this Court
"is, at all times, a question of much delicacy, which ought seldom,
if ever, to be decided in the affirmative, in a doubtful case." Fletcher v.
Peck , 6 Cranch 87, 10 U. S. 128 (1810) (Marshall, C.J.). Uncritical extension of constitutional
protection to the burning of the flag risks the frustration of the
very purpose for which organized governments are instituted. The
Court decides that the American flag is just another symbol, about
which not only must opinions pro and con be tolerated, but for
which the most minimal public respect may not be enjoined. The
government may conscript men into the Armed Forces where they must
fight and perhaps die for the flag, but the government may not
prohibit the public burning of the banner under which they fight. I
would uphold the Texas statute as applied in this case. [ Footnote 2/2 ] Page 491 U. S. 436 [ Footnote 2/1 ] See Ala.Code § 13A-11-12 (1982); Ariz.Rev.Stat.Ann. §
13-3703 (1978); Ark.Code Ann. § 5-51-207 (1987); Cal.Mil. &
Vet.Code Ann. § 614 (West 1988); Colo.Rev.Stat. § 18-11-204 (1986);
Conn.Gen.Stat. § 53-258a (1985); Del.Code Ann., Tit. 11, § 1331
(1987); Fla.Stat. §§ 256.05-256.051 (1987); Fla.Stat. § 876.52
(1987); Ga.Code Ann. § 50-3-9 (1986); Haw. Rev.Stat. § 711-1107
(1988); Idaho Code § 18-3401 (1987); Ill.Rev.Stat., ch. 1, �� 3307,
3351 (1980); Ind.Code § 35-45-1-4 (1986); Iowa Code § 32.1 (1978
and Supp.1989); Kan.Stat.Ann. § 21-4114 (1988); Ky.Rev.Stat.Ann. §
525.110 (Michie Supp.1988); La.Rev.Stat.Ann. § 14:116 (West 1986);
Me.Rev.Stat.Ann., Tit. 1, § 254 (1979); Md.Ann. Code, Art. 27, § 83
(1988); Mass.Gen.Laws §§ 264, 265 (1987); Mich.Comp.Laws § 750.246
(1968); Minn.Stat. § 609.40 (1987); Miss.Code Ann. § 97-7-39
(1973); Mo.Rev.Stat. § 578.095 (Supp.1989); Mont.Code Ann. §
45-8-215 (1987); Neb.Rev.Stat. § 28-928 (1985); Nev.Rev.Stat. §
201.290 (1986); N.H.Rev.Stat.Ann. § 646.1 (1986); N.J.Stat.Ann. §
2C:33-9 (West 1982); N.M.Stat.Ann. § 30-21-4 (1984);
N.Y.Gen.Bus.Law § 136 (McKinney 1988); N.C.Gen.Stat. § 14-381
(1986); N.D.Cent.Code § 12.1-07-02 (1985); Ohio Rev.Code Ann. §
2927.11 (1987); Okla.Stat., Tit. 21, § 372 (1983); Ore.Rev.Stat. §
166.075 (1987); 18 Pa.Cons.Stat. § 2102 (1983); R.I.Gen.Laws §
11-15-2 (1981); S.C.Code §§ 16-17-220, 16-17-230 (1985 and
Supp.1988); S.D.Codified Laws § 22-9-1 (1988); Tenn.Code Ann. §§
39-5-843, 39-5-847 (1982); Tex.Penal Code Ann. § 42.09 (1974); Utah
Code Ann. § 76-9-601 (1978); Vt.Stat.Ann., Tit. 13, § 1903 (1974);
Va.Code § 18.2-488 (1988); Wash.Rev.Code § 9.86.030 (1988); W.Va.
Code § 61-1-8 (1989); Wis.Stat. § 946.05 (1985-1986).

															[ Footnote 2/2 ]

															In holding that the Texas statute as applied to Johnson violates
the First Amendment, the Court does not consider Johnson's claims
that the statute is unconstitutionally vague or overbroad. Brief
for Respondent 24-30. I think those claims are without merit. In New York State Club Assn. v. City of New York, 487 U. S. 1 , 487 U. S. 11 (1988), we stated that a facial challenge is only proper under the
First Amendment when a statute can never be applied in a
permissible manner or when, even if it may be validly applied to a
particular defendant, it is so broad as to reach the protected
speech of third parties. While Tex.Penal Code Ann. § 42.09
(1989)

															"may not satisfy those intent on finding fault at any cost, [it
is] set out in terms that the ordinary person exercising ordinary
common sense can sufficiently understand and comply with." CSC Letter Carriers, 413 U. S. 548 413 U. S. 579 (1973). By defining "desecrate" as "deface," "damage" or otherwise
"physically mistreat" in a manner that the actor knows will
"seriously offend" others, § 42.09 only prohibits flagrant acts of
physical abuse and destruction of the flag of the sort at issue
here -- soaking a flag with lighter fluid and igniting it in public
-- and not any of the examples of improper flag etiquette cited in
respondent's brief.

															JUSTICE STEVENS, dissenting.

															As the Court analyzes this case, it presents the question
whether the State of Texas, or indeed the Federal Government, has
the power to prohibit the public desecration of the American flag.
The question is unique. In my judgment, rules that apply to a host
of other symbols, such as state flags, armbands, or various
privately promoted emblems of political or commercial identity, are
not necessarily controlling. Even if flagburning could be
considered just another species of symbolic speech under the
logical application of the rules that the Court has developed in
its interpretation of the First Amendment in other contexts, this
case has an intangible dimension that makes those rules
inapplicable.

															A country's flag is a symbol of more than "nationhood and
national unity." Ante at 491 U. S. 407 , 491 U. S. 410 , 491 U. S. 413 ,
and n. 9, 491 U. S. 417 , 491 U. S. 420 .
It also signifies the ideas that characterize the society that has
chosen that emblem as well as the special history that has animated
the growth and power of those ideas. The fleurs-de-lis and
the tricolor both symbolized "nationhood and national unity," but
they had vastly different meanings. The message conveyed by some
flags -- the swastika, for example -- may survive long after it has
outlived its usefulness as a symbol of regimented unity in a
particular nation. Page 491 U. S. 437 So it is with the American flag. It is more than a proud symbol
of the courage, the determination, and the gifts of nature that
transformed 13 fledgling Colonies into a world power. It is a
symbol of freedom, of equal opportunity, of religious tolerance,
and of goodwill for other peoples who share our aspirations. The
symbol carries its message to dissidents both at home and abroad
who may have no interest at all in our national unity or
survival.

															The value of the flag as a symbol cannot be measured. Even so, I
have no doubt that the interest in preserving that value for the
future is both significant and legitimate. Conceivably, that value
will be enhanced by the Court's conclusion that our national
commitment to free expression is so strong that even the United
States, as ultimate guarantor of that freedom, is without power to
prohibit the desecration of its unique symbol. But I am
unpersuaded. The creation of a federal right to post bulletin
boards and graffiti on the Washington Monument might enlarge the
market for free expression, but at a cost I would not pay.
Similarly, in my considered judgment, sanctioning the public
desecration of the flag will tarnish its value -- both for those
who cherish the ideas for which it waves and for those who desire
to don the robes of martyrdom by burning it. That tarnish is not
justified by the trivial burden on free expression occasioned by
requiring that an available, alternative mode of expression --
including uttering words critical of the flag, see Street v.
New York, 394 U. S. 576 (1969) -- be employed.

															It is appropriate to emphasize certain propositions that are not
implicated by this case. The statutory prohibition of flag
desecration 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." West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 642 (1943). The statute does not compel any conduct or any profession
of respect for any idea or any symbol. Page 491 U. S. 438 Nor does the statute violate "the government's paramount
obligation of neutrality in its regulation of protected
communication." Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 70 (1976) (plurality opinion). The content of respondent's message has
no relevance whatsoever to the case. The concept of "desecration"
does not turn on the substance of the message the actor intends to
convey, but rather on whether those who view the act will
take serious offense. Accordingly, one intending to convey a
message of respect for the flag by burning it in a public square
might nonetheless be guilty of desecration if he knows that others
-- perhaps simply because they misperceive the intended message --
will be seriously offended. Indeed, even if the actor knows that
all possible witnesses will understand that he intends to send a
message of respect, he might still be guilty of desecration if he
also knows that this understanding does not lessen the offense
taken by some of those witnesses. Thus, this is not a case in which
the fact that "it is the speaker's opinion that gives offense"
provides a special "reason for according it constitutional
protection," FCC v. Pacifica Foundation, 438 U.
S. 726 , 438 U. S. 745 (1978) (plurality opinion). The case has nothing to do with
"disagreeable ideas," see ante at 491 U. S. 409 .
It involves disagreeable conduct that, in my opinion, diminishes
the value of an important national asset.

															The Court is therefore quite wrong in blandly asserting that
respondent

															"was prosecuted for his expression of dissatisfaction with the
policies of this country, expression situated at the core of our
First Amendment values." Ante at 491 U. S. 411 .
Respondent was prosecuted because of the method he chose to express
his dissatisfaction with those policies. Had he chosen to
spraypaint -- or perhaps convey with a motion picture projector --
his message of dissatisfaction on the facade of the Lincoln
Memorial, there would be no question about the power of the
Government to prohibit his means of expression. The prohibition
would be supported by the legitimate interest in preserving the
quality of an important Page 491 U. S. 439 national asset. Though the asset at stake in this case is
intangible, given its unique value, the same interest supports a
prohibition on the desecration of the American flag. * 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.

															I respectfully dissent.

															* The Court suggests that a prohibition against flag desecration
is not content-neutral, because this form of symbolic speech is
only used by persons who are critical of the flag or the ideas it
represents. In making this suggestion, the Court does not pause to
consider the far-reaching consequences of its introduction of
disparate-impact analysis into our First Amendment jurisprudence.
It seems obvious that a prohibition against the desecration of a
gravesite is content-neutral even if it denies some protesters the
right to make a symbolic statement by extinguishing the flame in
Arlington Cemetery where John F. Kennedy is buried while permitting
others to salute the flame by bowing their heads. Few would doubt
that a protester who extinguishes the flame has desecrated the
gravesite, regardless of whether he prefaces that act with a speech
explaining that his purpose is to express deep admiration or
unmitigated scorn for the late President. Likewise, few would claim
that the protester who bows his head has desecrated the gravesite,
even if he makes clear that his purpose is to show disrespect. In
such a case, as in a flag burning case, the prohibition against
desecration has absolutely nothing to do with the content of the
message that the symbolic speech is intended to convey.