United States v. Eichman

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 Columbia and the U.S. District Court for the Western District of Washington held that the 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 it a 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 cannot be censored solely because of its context. Brennan added that the state law went well beyond the "time, place, and manner" restrictions a state may place on expressive conduct.