This section contains the nature of the case and procedural background.

While the Republican National Convention was taking place in Dallas, Johnson (D) participated in a political demonstration. D unfurled an American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted, 'America, the red, white, and blue, we spit on you.' Several witnesses testified that they had been seriously offended by the flag-burning. D was the only demonstrator charged with a crime. The charge was desecration of a venerated object, pursuant to a statute prohibiting desecration of a public monument, a place of worship or burial, or a state or national flag. D was convicted, sentenced to one year in prison, and fined $2,000. The Court of Appeals affirmed, but the Texas Court of Criminal Appeals reversed. The State (P) could not, consistent with the First Amendment, punish Johnson for burning the flag in these circumstances. D's conduct was symbolic speech protected by the First Amendment. P asserted two interests: preserving the flag as a symbol of national unity and preventing breaches of the peace. The Court of Criminal Appeals held that neither interest supported his conviction. The court concluded that the flag desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. '`Serious offense' occurred,' the court admitted, but there was no breach of peace, nor does the record reflect that the situation was potentially explosive. One cannot equate 'serious offense' with incitement to breach the peace. The court did not address the argument that the statute was, on its face, unconstitutionally vague and overbroad.

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