''United States v. Eichman'', 496 U.S. 310 (1990), was a

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

case that invalidated a federal law against

flag desecration Flag desecration is the desecration of a flag, violation of flag protocol, or various acts that intentionally destroy, damage, or mutilate a flag in public. In the case of a national flag, such action is often intended to make a political poin ...

as a violation of

free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been ...

under the

First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...

. It was argued together with the case ''United States v. Haggerty''. It built on the opinion handed down in the Court's decision the prior year in ''

Texas v. Johnson ''Texas v. Johnson'', 491 U.S. 397 (1989), was a landmark decision of the Supreme Court of the United States in which the Court held, 5–4, that burning the American flag was protected speech under the First Amendment to the Constitution, as do ...

'' (1989), which invalidated on First Amendment grounds a Texas state statute banning flag burning.

Background

In response to ''Texas v. Johnson'', the 101st Congress passed the

Flag Protection Act Reacting to protests during the Vietnam War era, the United States 90th Congress enacted Public Law 90-381 (82 Stat. 291), later codified as 18 U.S.C. 700, et. seq., and better known as the Flag Protection Act of 1968. It was an expansion to na ...

of 1989, which attempted to circumvent the ''Johnson'' ruling by prohibiting mistreatment of the flag without regard to any message being conveyed. On the day that the law took effect, protests were staged around the nation. Demonstrators at two of these incidents, in Seattle and Washington, D.C., were arrested and charged under the revised statute. In Seattle, flags were burned at a demonstration organized by the Vietnam Veterans Against the War Anti-Imperialist outside the Capitol Hill post office shortly after midnight, moments after the law took effect. No one was arrested during the demonstration, but four people identified from photographs were later charged with violating the federal Flag Protection Act of 1989: Mark Haggerty, Jennifer Campbell, Darius Strong and Carlos Garza. None of the four were members or supporters of VVAW-AI or the Revolutionary Communist Party. None of the four had been among the organizers of the demonstration or had previously known each other. In Washington, D.C.,

Gregory Lee Johnson Gregory Lee "Joey" Johnson (born 1956) is an American political activist affiliated with the Revolutionary Communist Party USA. His burning of the flag of the United States in a political demonstration during the 1984 Republican National Conven ...

, the defendant in ''Texas v. Johnson'', staged a protest together with three companions – artists

Dread Scott Scott Tyler (born 1965), known professionally as Dread Scott, is an American artist whose works, often participatory in nature, focus on the experience of African Americans in the contemporary United States. His first major work, ''What Is the P ...

and Shawn Eichman and Vietnam veteran David Blalock – by burning flags on the steps of the

United States Capitol The United States Capitol, often called The Capitol or the Capitol Building, is the seat of the legislative branch of the United States federal government, which is formally known as the United States Congress. It is located on Capitol Hill ...

building before a crowd of reporters and photographers. Scott had recently aroused controversy with a "flag on the floor" exhibit at the Art Institute of Chicago. Eichman was a member of the Coalition Opposed to Censorship in the Arts, and Blalock was a member of the Vietnam Veterans Against the War Anti-Imperialist. All four were supporters of the Revolutionary Communist Party and/or the Revolutionary Communist Youth Brigade. On the day of the protest they released a statement calling for others to express opposition to "compulsory patriotism" by burning the flag. In both cases, federal district judges in Seattle and Washington, D.C. dismissed charges brought against the protesters, citing ''Texas v. Johnson''. U.S. attorneys appealed the decisions directly to the Supreme Court. Because the Flag Protection Act called for expedited review, the two cases were consolidated into ''United States v. Eichman'' (1990), which would serve as a test case for the amended statute.

Opinion of the Court

In an opinion by Justice Brennan and decided along the same 5–4 lines as in ''Texas v. Johnson'', the Court held that the federal government, like the states, cannot prosecute a person for desecration of a United States flag, because to do so would be inconsistent with the First Amendment. The Government conceded that desecration of the flag constitutes expressive conduct and enjoys the First Amendment's full protection. It is clear that the "Government's asserted interest" in protecting the "physical integrity" of a privately owned flag in order "to preserve the flag's status as a symbol of the Nation" and certain national ideals, is related to the suppression, and concerned with the content, of free expression. The majority wrote that mere destruction or disfigurement of a symbol's physical manifestation does not diminish or otherwise affect the symbol itself. The Government's interest is implicated only when a person's "treatment of the flag communicates a message" to others that is inconsistent with the identified ideals of the flag. The precise language of the Act's prohibitions confirms Congress' interest in the communicative impact of flag destruction, since each of the specified terms – with the possible exception of "burns" – unmistakably connotes disrespectful treatment of the flag and suggests a "focus on those acts likely to damage the flag's symbolic value." This is further supported by the Act's explicit exemption for disposal of worn or soiled flags, which the Act protects from prosecution since disposing a worn or soiled flag does not desecrate the flag's symbolic nature. Thus, the Act is struck down as its restriction on expressive conduct cannot "be justified without reference to the content of the regulated speech." It must therefore be subjected to "the most exacting scrutiny," which cannot justify its infringement on First Amendment rights. While flag desecration – like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures – is deeply offensive to many, "the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."''Eichman'', 496 U.S. at 313–319.

Subsequent developments

On remand, Eichman's case was dismissed, as she and her fellow defendants had only been charged with flag desecration. However, the defendants in the ''Haggerty'' case had faced an additional charge of destruction of government property, as the burned flag was alleged to have been stolen from Seattle's Capitol Hill Post Office. On those charges, all four Seattle defendants pleaded guilty and were fined. Carlos Garza and Darius Strong each served three days in jail. When Republicans retook control of Congress for the 104th session, the

Flag Desecration Amendment The Flag Desecration Amendment (often referred to as the Flag-Burning Amendment) is a proposed addition to the Constitution of the United States that would allow the U.S. Congress to prohibit by statute and provide punishment for the physical " ...

was first proposed, which would grant the federal government the authority to proscribe flag burning. A resolution for this Amendment passed the House in every session from the 104th until the 109th Congress, but never got past the Senate (in the most recent vote, passage in the Senate failed by one vote), and has not been considered since the 109th Congress, which ended in 2007.

Notes

References

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External links