Within months of the Texas v. Johnson decision that burning an American flag is constitutionally protected expression, Congress passed the Flag Protection Act, legislatively challenging the Court’s ruling and prohibiting the desecration of American flags. For the second time in two years, the Supreme Court was faced with the question of whether the government could ban flag burning.
United States v. Eichman: Background
After Congress passed the Flag Protection Act of 1989 in reaction to the Supreme Court’s Texas v. Johnson decision, thousands of people burned flags in protest. Two, Shawn Eichman and Mark Haggerty, challenged their arrest and conviction under the law to the Supreme Court. Two appellate cases were consolidated into the case United States v. Eichman, decided in 1990. In each of the two cases, people were prosecuted for and convicted of burning an American flag in violation of the Flag Protection Act.
According to the Flag Protection Act:
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Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both. This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled.
As used in this section, the term “flag of the United States” means any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.
The government argued that the Flag Protection Act was directed against all forms of flag mistreatment irrespective of the message being conveyed and thus bypassed Texas v. Johnson.
United States v. Eichman: Decision
The Supreme Court ruled 5-4 against the government, which should have been expected as almost nothing new was raised in this case that was not already in last year’s case on the same matter. According to the majority decision:
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[T]he 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 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.
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, and since the explicit exemption for disposal of “worn or soiled” flags protects certain acts traditionally associated with patriotic respect for the flag. [emphasis added]
A symbol is an object that stands for or represents something else. Destroying a symbol does not affect what is symbolized. If you burn a person in effigy, you do not also burn the person which the effigy is of. If a wedding ring is lost, this doesn’t mean that a marriage is ended. Destroying a symbol sends a message about a person’s attitudes towards, interpretation of, or beliefs about that symbol and what is represents.
As the above passage makes clear, the entire point behind bans on flag burning or desecration is to suppress the communication of interpretations of and attitudes towards the American flag which are inconsistent with the beliefs and attitudes of most Americans. It’s the expression of a minority and offensive viewpoint which is at issue here, not the physical protection of a piece of cloth.
The fact that people are offended by desecration of the flag is not an adequate justification for making criminals of those who burn a privately-owned piece of cloth:
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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.
The decision further indicated that any attempts to prohibit the desecration of flags would be viewed suspiciously by the Court as attempts to limit free speech; more laws against flag burning were therefore not passed.
United States v. Eichman: Significance
Although only narrowly again, the principles of free speech were reinforced as was the Court’s commitment to protecting even extremely provocative expression. As a consequence of this ruling, activists began working towards amending the Constitution in order to authorize such laws explicitly.
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