Flag burning





The issue of flag desecration has been and continues to be

a highlycontroversial issue; on the one side there are those who

believe that the flag is a unique symbol for our nation which

should be preserved at all costs, while on the other are those

who believe that flag burning is a form of free speech and that

any legislation designed to prevent this form of expression is

contrary to the ideals of the First Amendment to our

Constitution. Shawn Eichman, as well as the majority of the

United States Supreme Court, is in the latter of these groups.

Many citizens believe that the freedom of speech granted to them

in the First Amendment means that they can express themselves in

any manner they wish as long as their right of expression does

not infringe on the rights of others; others, however, believe

that there are exceptions to this right of speech.


Such constitutional issues need to be worked out by the

Supreme Court, which uses its powers of constitutional

interpretation and judicial review to outline the underpinnings

of the Constitution and interpret the law. The case which acted

as an impetus for Eichman’s actions was that of Texas v.

Johnson. “In 1984, in Dallas, Gregory Johnson, a member of the

Revolutionary Communist Youth Brigade, a Maoists society,

publicly burned a stolen American flag to protests the re-

nomination of Ronald Reagan as the Republican candidate” (Levy

217). The police consequently arrested Johnson not for his

message but for his manner in delivering it; he had violated a

Texas statute that prohibited the desecration of a venerated

object by acts that “the offender knows will seriously offend

one or more persons” (Downs 83).

Johnson had hoped to capture America’s attention with this

burning, and he did; however, his protest earned him more than a

moment in the national spotlight. “Under Texas’s tough anti-

flag-burning statute, Johnson was fine $2,000 and sentenced to a

year in prison” (Relin 16). In Texas v. Johnson a majority of

the Supreme Court considered for the first time whether the

First Amendment protects desecration of the United States flag

as a form of symbolic speech. A sharply divided Court had

previously dealt with symbolic speech cases that involved

alleged misuses of the flag. While “the Court had ruled in favor

of the defendants in those cases (Street v. New York, 1969;

Smith v. Goguen, 1974; Spence v. Washington, 1974), it had done

so on narrow grounds, refusing to confront the ultimate question

status of flag desecration” (Downs 868).

The court ruled in favor of Johnson (5-4), believing that

“there was no evidence that Johnson’s expression threatened an

imminent disturbance of the peace, and that the statute’s

protection of the integrity of the flag as a symbol was

improperly directed at the communicative message entailed in

flag burning” (Downs 868). Justice Brennan concluded

by saying, “We do not consecrate the flag by punishing it’s

desecration, for in doing so we dilute the freedom that this

cherished emblem represents” (Witt 409). Reacting to this

ruling, the Untied State’s Congress sought to pass legislation

that would overturn it.

The Flag Protection Amendment was introduced and then voted

down, but then the Flag Protection Act was passed in both

houses. President Bush allowed this act to pass without his

signature, “an expression of his preference for a Constitutional

amendment” (Apel “Flag Protection”). The Act criminalized the

conduct of anyone who “knowingly mutilates, defaces, physically

defiles, burns, maintains on the floor or ground, or tramples

upon” a United States flag, except conduct related to the

disposal of a “worn or soiled” flag (U.S.). On October 30th,

1989, the day the bill went into effect, hundreds of people

burned flags; among them was Shawn Eichman.

The Justice Department admitted that the law was

unconstitutional under Texas v. Johnson, but prosecuted anyways,

hoping to get the court to reverse its decision. The court

decided that “flag desecration is a form of political expression

that is protected under the First Amendment rights to free

speech,” and ruled in favor of Eichman by a vote of 5 to 4, thus

nullify the Flag Protection Act which Eichman had been

protesting (“House” 1144). The majority consisted of Justices

Brennan, Marshall, Blackmun, Scalia, and Kennedy. Dissenting

were Justices Stevens,