Justice Brennan’s opinion in Texas v. JohnsonJustice Brennan cited several First Amendment cases to show that a precedentwas set to encompass protection for expression which is not spoken or written (i.e.,protection for symbolic actions such as protesting conflict through arm-band wearing,sit-ins, etc.). The cases cited, including the current one, were subject to the O’Brien test,which is a measure to determine if the State’s statute can be considered valid, in that itspecifically forbids non-communicative expression for the benefit of direct substantialgovernment interest . In defense, the State extended two interests to justify the limitations onexpression: preventing disturbance of the peace and protecting the flag as “a symbol ofnationhood and national unity.” The Court deemed that the first qualification was notsubject to the O’Brien test, and that the second was a direct maneuver to limit expression.The Court first showed that Johnson’s action did not classify as either “breachingthe peace,” or as “fighting words.” Thus, the circumstances must be evaluated todetermine whether or not the motive for the action was to directly incite or produce“imminent lawless action” (Brandenburg v. Ohio), and whether or not the breach ofpeace actually occurs. Justice Brennan stated that the First Amendment’s purpose was todefend such controversial and “disagreeable” speech and actions, rather than to censor itbased upon the “potential” for a breach of the peace.Justice Brennan showed that the second motive behind the Texas statute mightshow direct governmental interest in limiting expression, but that the law did not qualifyprotection under the O’Brien test because the action was a “suppression of freeexpression.”The Court continued by showing that the flag cannot be protected simply becausethe majority of people in ...
