Flag Desecration



The issue of flag desecration has been and continues to be a
highly controversial 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 on
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, Renquist,
White, and O’Connor.
For the majority opinion, Justice Brennan wrote the
following:

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...Moreover, the precise
language of the Act’s prohibitions confirms Congress’
interest in the communicative impact of flag
destruction...If there is a bedrock principle
underlying