Gregory “Joey” Johnson was the protestor who prevailed in the landmark 1989 Supreme Court case Texas v. Johnson, holding that the First Amendment protects the right to burn the U.S. flag.
On Independence Day 2019, he once again burned a U.S. flag, this time on Pennsylvania Avenue right in front of the White House. After an initial incident in which some people wearing pro-Trump regalia violently tried to prevent Mr. Johnson from burning a flag, the Secret Service closed Pennsylvania Avenue and cleared the street except for Mr. Johnson’s group, which had previously announced their plan to burn a flag, and had even filed an Assembly Plan Notification with the D.C. police.
As Mr. Johnson lit the flag, no one was in the vicinity of Mr. Johnson’s group except four uniformed Secret Service officers, all at a safe distance away from the flag. But immediately after he lit the flag, two officers rushed in, one with a fire extinguisher to douse the burning flag—for no good reason, as no one was in danger, and apparently to interfere with Mr. Johnson’s First Amendment activity. Mr. Johnson dropped the flag as the fire extinguisher began spraying; the flag floated toward the second officer, who backed away and then stomped on the flag to put the fire out but whom the government later claimed was injured by smoke inhalation.
Mr. Johnson was arrested and charged with two disorderly conduct offenses.
Together with Mr. Johnson’s criminal defense counsel, we sent a letter to the D.C. Attorney General in September 2019 explaining that Mr. Johnson’s expressive conduct—which, as video of the incident showed, was entirely peaceful and non-threatening—was protected by the First Amendment and that the criminal charges were untenable.
Less than a week later, the government dismissed the charges.
