Flag Burning and the
First Amendment
A Case Study of
U.S. v. Eichman
SEATTLE, WASHINGTON:
MIDNIGHT ON OCTOBER 28, 1989

Mark Haggerty, Jennifer
Campbell, Darius Strong,
and Carlos Garza remove
a flag from a U.S. post
office and burn it.

They are immediately
arrested and charged
with violating the Flag
Protection Act of 1989.
Photo taken by Nova77.
http://commons.wikimedia.org/wiki/File:Seattle_skyline_night.jpg
. . . TWO DAYS LATER IN
WASHINGTON, D.C.

Shawn Eichman, David
Blalock, Scott Tyler and
Gregory “Joey” Johnson each
burn a flag on the steps of the
Capitol Building.

Three of the four are arrested
for violating The Flag
Protection Act of 1989.
Photo by Hellohowareyoudoing.
http://commons.wikimedia.org/wiki/File:Capitol_Building_Side2.jpg
WHAT WAS THEIR DEFENSE?


Photo by Noplur.
http://commons.wikimedia.org/wiki/File:Flag_burning.jpg
Both groups were
prosecuted in federal
court.
Both claimed that the
Flag Protection Act of
1989 violated their First
Amendment rights to free
speech.
First Amendment
Congress shall make no law...
abridging the freedom of speech.
PURE SPEECH
Words or conduct limited in form to what
is necessary to convey the idea.
 Given the greatest constitutional
protection.
 Limitations

 Schenk

v. United States
Clear and Present Danger
 Chaplinksy

v. New Hampshire
Fighting Words
SYMBOLIC SPEECH

Conduct that expresses opinions or
thoughts.
 Stromberg

v. California
Raising a red Communist Flag
 Tinker
v. Des Moines Independent
Community School District

Wearing black armbands to protest the Vietnam
War.
SYMBOLIC SPEECH: THE
SPENCE TEST

Spence v. Washington
 An
intent to convey a particularized message.
 A great likelihood that the message will be
understood by those who view it.
SYMBOLIC SPEECH:
LESS PROTECTED

Symbolic Speech enjoys less protection
than pure speech.
 When
“speech” and “nonspeech” elements are
combined in the same course of conduct, a
sufficiently important government interest in
regulating the nonspeech element can justify
incidental limitations on First Amendment
freedoms.
SYMBOLIC SPEECH:
THE O’BRIEN TEST

Under United States v. O’Brien, the government can
regulate symbolic speech if:
1.
2.
3.
4.
It is within its constitutional power to do so;
It furthers an important or substantial government interest;
That government interest is unrelated to the suppression of free
expression (in other words, related to the nonspeech element of
the conduct);
And the incidental restriction on the “speech” element is no
greater than necessary to further the interest.
...SO, IS FLAG BURNING A
FORM OF PROTECTED
SPEECH?

Texas v. Johnson


Gregory “Joey” Johnson
burns a flag outside the
Republican National
Convention of 1984 in
Dallas, Texas.
He is arrested for violating
a Texas anti-flag burning
statute.
Photo by Joel Seidenstein.
http://commons.wikimedia.org/wiki/File:William_Kunstler_and_Gregory_Lee_
Johnson.jpg
SUPREME COURT NARROWLY
FINDS FOR JOHNSON


5-4 Decision
Spence v. Washington
test

Photo by UpstateNYer.
http://commons.wikimedia.org/wiki/File:USSupremeCourtWestFacade.JPG

Johnson conveyed a
particularized message
likely to be understood by
observers.
U.S. v. O’Brien test

Government interest was to
suppress free expression
CONGRESS STRIKES BACK

Congress passes the Flag
Protection Act of 1989.
The Flag Protection Act of 1969

Whoever knowingly
casts contempt upon
any flag of the United
States by publicly
mutilating, defacing,
defiling, burning, or
trampling upon it shall be
fined not more than
$1,000 or imprisoned for
not more than one year,
or both.
Congressional Response

Democrats

Generally favored
creating a stronger law
than the one in existence
to prevent flag burning
 Law should be “contentneutral” and focus on
actions to avoid 1st
Amendment application

Republicans

Feared a new federal
law would simply expand
the Johnson holding
 Generally favored a
Constitutional
Amendment expressly
giving Congress to
legislate on the issue
 Supported by President
George H.W. Bush
Flag Protection Act of 1989

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.

Clause that gave the
Supreme Court direct
jurisdiction over any
appeal asking to
address the
constitutionality of the
provision
“JOEY” JOHNSON & FRIENDS
REACT

At midnight on October 28,
1989, the moment the new
Act goes into effect,
protesters across the
country burn flags in
protest.

This includes the Seattle
protesters.

Two nights later, Johnson
and his friends burn flags
AGAIN in Washington, D.C.
Photo by Jennifer Parr.
http://commons.wikimedia.org/wiki/File:US_flag_burning.jpg
THE CASES BECOME
U.S. v. EICHMAN



The Supreme Court
combines the two cases
into one action.
Solicitor General Kenneth
Starr Represents the U.S.
Bill Kunstler once again
represents the flag
burners.
ONCE AGAIN...
THE FLAG BURNERS WIN!

5-4 Decision
Photo by lkluft.
http://commons.wikimedia.org/wiki/File:Fireworks_in_San_Jose
_California_2007_07_04_by_Ian_Kluft_img_9618.jpg
Supreme Court Votes in Texas
v. Johnson and U.S. v. Eichman

Laws Violate 1st
Amendment

Laws Do Not Violate
1st Amendment
 Marshall
 Stevens
 Brennan
 White
 Blackmun
 O’Connor
 Kennedy
 Rehnquist
 Scalia
Flag Desecration Amendment
Debate
The Congress shall have power to prohibit
the physical desecration of the flag of the United
States
Arguments Against Flag
Desecration Amendment



Restricts
freedom of
speech
Tyranny of the
Majority
Opens the
door
Arguments For Flag
Desecration Amendment




Not speech
Special symbol
Historical support for
banning
Narrow area of law
Flag Protection Amendment
Bills in Congress
Congress
Resolution(s)
Vote Date
Yes
No
Percent
104th
House Joint Resolution
79
Senate Joint Resolution
31
June 28, 1995
312
120
72%
December 19, 1995
63
36
64%
House Joint Resolution
54
June 12, 1997
310
114
73%
June 24, 1999
305
124
71%
March 29, 2000
63
37
63%
House Resolution 36
July 17, 2001
298
125
70%
House Joint Resolution
4
June 3, 2003
300
125
71%
June 22, 2005
285
130
69%
June 27, 2006
66
34
66%
105th
106th
House Joint Resolution
33
Senate Joint Resolution
14
107th
108th
109th
House Joint Resolution
10
Senate Joint Resolution
12
States’ Actions in Support of
Flag Protection Amendment

All 50 states have
passed resolutions

48 states still have
flag desecration laws
in place
American Support of a Flag
Protection Amendment

How important do you think it is to make physical
desecration of the U.S. flag against the law?
© Opinion Research
Corporation, 2006.
Prepared for the
Citizen’s Flag Alliance
American Support of a Flag
Protection Amendment

Would you favor or oppose a Constitutional amendment
that would allow Congress to enact laws to protect the
U.S. flag?
© Opinion Research
Corporation, 2006.
Prepared for the
Citizen’s Flag Alliance
Desecrating Other Symbols

Civic?
Desecrating Other Symbols

Personal?
 Effigy
of
Representative Frank
Kratovil in 2009
Desecrating Other Symbols

Religious?
Westboro Baptist Church

“We adhere to the teachings of the
Bible and preach against all forms of
sin (e.g., fornication, adultery
[including divorce and remarriage],
sodomy)”

“WBC engages in daily peaceful
sidewalk demonstrations opposing
the homosexual lifestyle of souldamning, nation-destroying filth.”

Recent Scheduled Protests:



Fort Hood Memorial on Nov. 10
Veterans’ sites on Nov. 11
A Jewish high school on Nov. 12
Protected Speech?







Nazi March in Skokie
Chase Harper
How to be a Hitman
Anarchist’s Cookbook
Geert Wilders
Crush Videos
Town Hall Meetings