By a 5-4 vote the Supreme Court upheld the judgment of the Texas Court of Criminal Appeals in overturning Johnson’s conviction. A rare coalition comprised the majority: Justices William Brennan, Harry Blackmun, Anthony Kennedy, Thurgood Marshall, and Antonin Scalia. Speaking for the majority, Justice Brennan wrote: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.” He went on to indicate that the majority believed that Johnson was being prosecuted for voicing his disapproval of U.S. policies and that this type of expression may not be prohibited simply because society does not agree with the idea. The majority felt that the flag’s place would be strengthened instead of weakened by the Court’s decision. Brennan wrote, “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.” He indicated that the government generally has more freedom in restricting expressive conduct than in restricting the written or spoken word but that First Amendment protection doesn’t end at the written or spoken word. He wrote: “Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
In a concurring opinion, Justice Anthony Kennedy wrote: “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”He agreed that the flag holds a place of honor but asserted that the Constitution does not set this symbol aside in a special category.
Chief Justice William Rehnquist dissented and wrote a dissenting opinion, which was joined by Justices Byron White and Sandra Day O’Connor. He wrote:“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 a way respondent Johnson did here.”Rehnquist further stated that Johnson could have made any verbal denunciation of the flag that he wished and could even have burned it privately without breaking the law.
Justice John Paul Stevens also dissented and read his dissenting opinion from the bench. He wrote: “… 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. … A country’s flag is a symbol of more than ‘nationhood and national unity.”