1990 June 11

Supreme Court Declares Federal Flag Burning Law Unconstitutional: U.S. v. Eichman


In United States v. Eichman, decided on this day, the Supreme Court declared a federal flag desecration law unconstitutional under the First Amendment. The law marked the culmination of a rapid sequence of events. The Court had declared a Texas flag desecration law unconstitutional, in Texas v. Johnson, on June 21, 1989. In response to a public uproar over “flag burning,” Congress passed a revised federal desecration law on October 28, 1989 (the original flag desecration act had been passed on July 5, 1968 in response to flag burning by anti-Vietnam War protesters), and the Court declared it unconstitutional on this day.

The controversy provoked a strong movement in Congress to amend the First Amendment to prohibit flag desecration and burning. It narrowly failed to receive the necessary two-thirds of the Senate on December 12, 1995. The vote was the closest the U.S. had ever come to amending the First Amendment.

Justice Brennan for the Court: “[I]f we were to hold that a State may forbid flag-burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role — as where, for example, a person ceremoniously burns a dirty flag — we would be . . . permitting a State to ‘prescribe what shall be orthodox’ by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity.”

Learn more: Robert Justin Goldstein, Flag Burning and Free Speech: The Case of Texas v. Johnson (2000)

And more about the flag burning cases: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/flagburning.htm

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