Study in Appellate Advocacy: Introduction

    Texas v. Johnson addresses the question whether a person can be convicted of a crime for burning an American flag in the course of a political demonstration. The Supreme Court held that, under the circumstances in this case, such a conviction would violate the First Amendment.

    Gregory Johnson participated in a political demonstration during the 1984 Republican National Convention in Dallas, Texas. The march was aimed at protesting the policies of the Reagan administration and some Dallas-based corporations. The demonstrators marched through the streets of the Dallas business district, chanting various political slogans. They stopped at several corporate buildings along the way, doing minor damage at some locations. At the final stop, witnesses said, Mr. Johnson burned an American flag while the protesters chanted.

    The entire demonstration was witnessed by several police officers. Mr. Johnson was arrested and charged with desecration of a venerated object under Texas Penal Code section 42.09. The statute outlawed desecration of, among other things, a state or national flag. "Desecrate" was defined as "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."

    Mr. Johnson was convicted under the statute in the trial court. He lost an appeal to the intermediate court of appeals, but his conviction was reversed by the Texas Court of Criminal Appeals, the highest criminal appeals court in Texas. The State of Texas filed a petition for certiorari with the United States Supreme Court, and the Supreme Court accepted the case for review. You can find a summary of the facts and decision in Texas v. Johnson in the syllabus of the Supreme Court opinion. In its brief, the State of Texas argued that it was entitled to prohibit desecration of the flag in order to protect its compelling state interests in 1) preserving the flag as a symbol of nationhood and national unity, and 2) preventing breaches of the peace. It contended that its prohibition on the burning of the flag was aimed neutrally at physical destruction of the flag, without regard to the content of the symbolic speech. Mr. Johnson argued, among other things, that the State's viewpoint-based or content-based restriction on his symbolic speech violated the constitution. He rejected the State's argument that the restriction was content neutral, pointing to the provision of the statute that defines desecration as conduct that "the actor knows will seriously offend one or more persons...." After a spirited oral argument, the case was decided in favor of Mr. Johnson by a narrow margin. The court ruled that the conviction violated the First Amendment. So strong was the emotion raised among the members of the court, that Justice Rehnquist's dissent even quoted patriotic poetry in support of its argument that the flag should be protected.

This web site consists of the briefs and related documents in Texas v. Johnson, a case decided by the United States Supreme Court. The purpose of the web site is to help you learn how to draft an appellate brief through studying the briefs and other materials in a real case. We do this by explaining some of the principles and rules involved in brief writing, and showing you some real examples from the Texas v Johnson case.
Texas v. Johnson was a controversial case that addressed the constitutionality of a conviction for burning an American flag in the course of a political demonstration. You will probably find the legal arguments complex and perhaps inaccessible. But don't worry. The purpose of this web site is to teach you about appellate briefs, not constitutional law. To learn brief-writing skills, you need not attain a full understanding of the legal arguments in Texas v. Johnson. If, however, you do wish to learn more about the substance of the case, you will find that this web site contains plenty of material to help you do so.