In 1989, Justice Antonin Scalia cast the deciding vote to overturn the conviction of Gregory Lee Johnson, who was arrested and found guilty of violating a Texas statute after he burned the American flag outside the Republican National Convention. The author of the Court’s 5-4 opinion was Justice William Brennan, the leading liberal and advocate for the “living Constitution” on the Supreme Court. For conservatives, it was one of the two most widely criticized votes of Justice Scalia’s illustrious career (the other being his vote refusing to recognize that parents have a natural, constitutionally protected right to direct the upbringing of their children).
But the opinion by Justice Brennan, which Justice Scalia joined, is not as absolute as it has subsequently been portrayed.
It specifically held that Texas violated the First Amendment by prosecuting Johnson “in these circumstances”—that is, expressive conduct or symbolic speech as part of a political protest that was not designed to incite a crowd (nor did it have that effect). It also held that the “government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.” Only laws directed at restricting the communicative nature of expressive conduct implicate the First Amendment, and even then they can be upheld for a valid governmental interest.







