Appellant
United States of America
Appellee
Shawn D. Eichman
Appellant's Claim
That the 1989 Flag Protection Act does not violate the First Amendment guarantee of freedom of speech.
Chief Lawyer for Appellant
Kenneth W. Starr, U.S. Solicitor General
Chief Lawyer for Appellee
William M. Kunstler
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr. (writing for the Court), Anthony M. Kennedy, Thurgood Marshall, Antonin Scalia
Justices Dissenting
Sandra Day O'Connor, William H. Rehnquist, John Paul Stevens, Byron R. White
Place
Washington, D.C.
Date of Decision
11 June 1990
Decision
The Supreme Court struck down the Flag Protection Act as unconstitutional.
Significance
In Eichman a bare majority of the Court agreed that flag desecration laws would always be regarded as constitutionally suspect.
United States v. Eichman consolidated two appeals in flag burning cases arising out of the Flag Protection Act of 1989. In one case, the federal government prosecuted several individuals for deliberately setting fire to a number of American flags on the steps of the U.S. Capitol to protest the government's foreign and domestic policies. In the second case, others were prosecuted for deliberately setting fire to a U.S. flag in Seattle, Washington, to protest the Flag Protection Act. Based on the 1989 Supreme Court case of Texas v. Johnson, both the U.S. District Court for the District of Columbiaand the U.S. District Court for the Western District of Washington held thatthe Flag Protection Act was unconstitutional. The government appealed both cases directly to the U.S. Supreme Court.
Congress passed the Flag Protection Act specifically to provide the Court with an opportunity to reconsider its decision in Texas v. Johnson (1989). In that case, Johnson burned an American flag during the Republican National Convention in Dallas, Texas, to protest the policies of President Ronald Reagan. Johnson was then convicted of having violated a Texas statute making ita crime to knowingly desecrate a state or national flag. A state appellate court overturned his conviction, and the U.S. Supreme Court upheld this decision. In his opinion for the Court, Justice Brennan wrote that the Texas law violated the core First Amendment protection for political speech, which cannotbe censored solely because of its context. Brennan added that the state lawwent well beyond the "time, place, and manner" restrictions a state may placeon expressive conduct.
Court Declares Federal Flag Protection Act Unconstitutional
In Eichman, the U.S. government contended that the Flag Protection Actwas not intended to repress conduct per se; in contrast to the Texaslaw, the federal act was intended to prevent any form of flag desecration. Unlike the Texas statute, the Flag Protection Act did not contain a list of prohibited acts. Therefore, the government argued, the Court need not apply thehighest standard of review when considering the constitutionality of the federal act.
Writing for the Court once again, Justice Brennan disagreed:
For good measure, Brennan went on to imply that any flag desecration law would, by its very nature, be subject to the highest test in determining whetheror not it passed constitutional muster. But the vote in Eichman, as inJohnson, was 5-4. Writing for the four dissenters in Eichman,Justice Stevens maintained that the Flag Protection Act was constitutional. He agreed with the government that the act still left protesters with many avenues besides flag desecration for conveying their dissent. As for the American flag, it "uniquely symbolizes the ideas of liberty, equality, and tolerance. . . The flag embodies the spirit of our national commitment to those ideals. The message thereby transmitted does not take a stand upon our disagreements, except to say that those disagreements are best regarded as competing interpretations of shared ideals."
Related Cases
United States of America
Appellee
Shawn D. Eichman
Appellant's Claim
That the 1989 Flag Protection Act does not violate the First Amendment guarantee of freedom of speech.
Chief Lawyer for Appellant
Kenneth W. Starr, U.S. Solicitor General
Chief Lawyer for Appellee
William M. Kunstler
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr. (writing for the Court), Anthony M. Kennedy, Thurgood Marshall, Antonin Scalia
Justices Dissenting
Sandra Day O'Connor, William H. Rehnquist, John Paul Stevens, Byron R. White
Place
Washington, D.C.
Date of Decision
11 June 1990
Decision
The Supreme Court struck down the Flag Protection Act as unconstitutional.
Significance
In Eichman a bare majority of the Court agreed that flag desecration laws would always be regarded as constitutionally suspect.
United States v. Eichman consolidated two appeals in flag burning cases arising out of the Flag Protection Act of 1989. In one case, the federal government prosecuted several individuals for deliberately setting fire to a number of American flags on the steps of the U.S. Capitol to protest the government's foreign and domestic policies. In the second case, others were prosecuted for deliberately setting fire to a U.S. flag in Seattle, Washington, to protest the Flag Protection Act. Based on the 1989 Supreme Court case of Texas v. Johnson, both the U.S. District Court for the District of Columbiaand the U.S. District Court for the Western District of Washington held thatthe Flag Protection Act was unconstitutional. The government appealed both cases directly to the U.S. Supreme Court.
Congress passed the Flag Protection Act specifically to provide the Court with an opportunity to reconsider its decision in Texas v. Johnson (1989). In that case, Johnson burned an American flag during the Republican National Convention in Dallas, Texas, to protest the policies of President Ronald Reagan. Johnson was then convicted of having violated a Texas statute making ita crime to knowingly desecrate a state or national flag. A state appellate court overturned his conviction, and the U.S. Supreme Court upheld this decision. In his opinion for the Court, Justice Brennan wrote that the Texas law violated the core First Amendment protection for political speech, which cannotbe censored solely because of its context. Brennan added that the state lawwent well beyond the "time, place, and manner" restrictions a state may placeon expressive conduct.
Court Declares Federal Flag Protection Act Unconstitutional
In Eichman, the U.S. government contended that the Flag Protection Actwas not intended to repress conduct per se; in contrast to the Texaslaw, the federal act was intended to prevent any form of flag desecration. Unlike the Texas statute, the Flag Protection Act did not contain a list of prohibited acts. Therefore, the government argued, the Court need not apply thehighest standard of review when considering the constitutionality of the federal act.
Writing for the Court once again, Justice Brennan disagreed:
Although the Flag Protection Act contains no explicit content-based limitation onthe scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is "related 'to the suppression of free expression,'" and concerned with the content of such expression. The Government's interest in protecting the flag rests upon a perceived need to preserve the flag's status as a symbol of our nation and certain national ideals . . .implicated only when a person's treatment of the flag communicates [a] message to others that is inconsistent with those ideals. [Quoting Texas v. Johnson.]
For good measure, Brennan went on to imply that any flag desecration law would, by its very nature, be subject to the highest test in determining whetheror not it passed constitutional muster. But the vote in Eichman, as inJohnson, was 5-4. Writing for the four dissenters in Eichman,Justice Stevens maintained that the Flag Protection Act was constitutional. He agreed with the government that the act still left protesters with many avenues besides flag desecration for conveying their dissent. As for the American flag, it "uniquely symbolizes the ideas of liberty, equality, and tolerance. . . The flag embodies the spirit of our national commitment to those ideals. The message thereby transmitted does not take a stand upon our disagreements, except to say that those disagreements are best regarded as competing interpretations of shared ideals."
- Stromberg v. California, 283 U.S. 359 (1931).
- United States v. O'Brien, 391 U.S. 367 (1968).
- Texas v. Johnson, 491 U.S. 397 (1989).
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