United States v. Eichman

In Eichman, the U.S. government contended that the Flag Protection Act was not intended to repress conduct per se; in contrast to the Texas law, 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 the highest 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 on the 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 whether or not it passed constitutional muster. But the vote in Eichman, as in Johnson, 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."