In the summer of 1984, at the Republican National Convention in Dallas, Gregory Johnson burned an American flag to protest the policies of President Ronald Reagan.
“It was a way to speak to the people of the world,” Mr. Johnson said last week, a few days after President Trump issued an executive order that sought to undermine his landmark Supreme Court victory, Texas v. Johnson. By a 5-to-4 vote in 1989, the court said Mr. Johnson’s burning of the flag was political expression protected by the First Amendment.
Mr. Johnson, now 68, said protests like the one in Dallas were even more urgent in the Trump era. “Do you want to live in a country,” he asked, “that’s based on coerced, forced, compulsory patriotism?”
Mr. Trump’s order urged prosecution of flag burnings “to the fullest extent permissible” by invoking laws not aimed at speech, and it instructed officials to pursue deportation of noncitizens who burn American flags. The order only indirectly challenged the 1989 ruling, however, telling the attorney general to “pursue litigation to clarify the scope of the First Amendment exceptions.”
Mr. Johnson said he had not planned to burn a flag in Dallas. But when someone handed him one, he said, it seemed fitting.
“That flag,” he said, “is a symbol of American empire and plunder and murder going back to slavery in this country, and 100 years of Jim Crow segregation and all the lynching and the theft of half of Mexico.”
Mr. Johnson is a member of the Revolutionary Communist Party, the sort of dissident who was prosecuted for protesting through much of American history. But in the early 20th century, Justices Oliver Wendell Holmes Jr. and Louis Brandeis wrote First Amendment dissents that ripened into the United States’ distinctively robust free-speech doctrine in the decades that followed.
Mr. Johnson was charged with desecration of a venerated object, which was a crime in Texas. His trial attracted attention, he said. “It was a hot item in Dallas at the time,” he said. “High school classes came, and so did the Klan.”
He was convicted, and the prosecutor urged the jury to make an example of him. Mr. Johnson said he remembered one turn of phrase in particular.
“I want you to load up on him,” the prosecutor told the jury. “You come to our city and burn the flag, you know you’re going to pay the maximum.”
Mr. Johnson did receive the maximum sentence, a year in jail and a $2,000 fine. But he won an appeal before Texas’ highest court for criminal matters. “Recognizing that the right to differ is the centerpiece of our First Amendment freedoms,” the state court said, “a government cannot mandate by fiat a feeling of unity in its citizens.”
Mr. Johnson thought that had ended the matter. A few months later, though, he came across a newspaper article that said the Supreme Court had agreed to hear the state’s appeal.
He did not like his chances, and he knew he needed help. So he sent a telegram to William Kunstler, the leftist lawyer who had represented members of the Chicago Seven, the activists accused of conspiring to incite riots at the 1968 Democratic National Convention in Chicago.
Mr. Kunstler took the case. Working with David Cole, who would go on to be the American Civil Liberties Union’s national legal director, he pulled off an improbable victory. The majority included Justice Antonin Scalia.
Justice Scalia, a giant of the conservative legal movement frequently cited as an exemplary jurist by Mr. Trump, would for the rest of his career point to his vote in Mr. Johnson’s case as a defining one.
“If it was up to me, if I were king,” he said, “I would take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail.”
But the First Amendment, he went on, did not allow that. It protected Mr. Johnson’s right to express himself.
Also in the majority was Justice Anthony M. Kennedy, who was serving his first full term on the court. In a concurring opinion, he said his vote was a painful but necessary one.
He took an uncharacteristically personal swipe at Mr. Johnson, saying he was “not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself.”
I read the passage to Mr. Johnson, who paused before responding.
“I’m glad he voted in my favor,” Mr. Johnson said. But he added that there was “so much concentrated in that contempt, that political prejudice and the superiority complex or whatever, to think that I don’t have political convictions or understanding of philosophy.”
Of the current moment, he said: “What we’re dealing with is fascism. It’s not a curse word. There’s real content to it, and I wish more people would debate and struggle over that.”
Justice John Paul Stevens, a veteran of World War II, dissented from the ruling allowing flag burning. Decades later, he said the decision had a silver lining. Flag burning had all but disappeared, he observed to a Chicago audience in 2006.
“What once was a courageous act of defiant expression is now perfectly lawful,” he noted, “and therefore is not worth the effort.”
Justice Stevens seemed to assume that the closely divided decision had permanently settled the issue, but Mr. Johnson disagreed. “Ever since 1989,” he said, “I never thought, like, well, this is over with.”
To the contrary, he said, “at the time, I thought: Wow, I wonder how long this decision will last?”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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