1. Flag Burning and the First Amendment
A Case Study of
U.S. v. Eichman

2. 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.

3. . . . 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.

4. WHAT WAS THEIR DEFENSE? Both groups were prosecuted in federal court.
Both claimed that the Flag Protection Act of 1989 violated their First Amendment rights to free speech.
Photo by Noplur.

5. Congress shall make no law... abridging the freedom of speech.
First Amendment
Congress shall make no law... abridging the freedom of speech.

6. 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

7. 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.

8. 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.

9. 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.

10. SYMBOLIC SPEECH: THE O’BRIEN TEST
Under United States v. O’Brien, the government can regulate symbolic speech if:
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.

11. ...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.

12. SUPREME COURT NARROWLY FINDS FOR JOHNSON
Photo by UpstateNYer.
5-4 Decision
Spence v. Washington test
Johnson conveyed a particularized message likely to be understood by observers.
U.S. v. O’Brien test
Government interest was to suppress free expression

13. CONGRESS STRIKES BACK
Congress passes the Flag Protection Act of 1989.

14. 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.

15. Congressional Response
Democrats
Generally favored creating a stronger law than the one in existence to prevent flag burning
Law should be “content-neutral” 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

16. 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

17. “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.

18. 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.

19. ONCE AGAIN... THE FLAG BURNERS WIN!
5-4 Decision
Photo by lkluft.

20. Supreme Court Votes in Texas v. Johnson and U.S. v. Eichman
Laws Violate 1st Amendment
Marshall
Brennan
Blackmun
Kennedy
Scalia
Laws Do Not Violate 1st Amendment
Stevens
White
O’Connor
Rehnquist

21. Flag Desecration Amendment Debate
The Congress shall have power to prohibit the physical desecration of the flag of the United States

22. Arguments Against Flag Desecration Amendment
Restricts freedom of speech
Tyranny of the Majority
Opens the door

23. Arguments For Flag Desecration Amendment
Not speech
Special symbol
Historical support for banning
Narrow area of law

24. Flag Protection Amendment Bills in Congress
Resolution(s)
Vote Date
Yes No
Percent
104th
House Joint Resolution 79
June 28, 1995
312
120
72%
Senate Joint Resolution 31
December 19, 1995 63 36
64%
105th
House Joint Resolution 54
June 12, 1997
310
114
73%
106th
House Joint Resolution 33
June 24, 1999
305
124
71%
Senate Joint Resolution 14
March 29, 2000 37
63%
107th
House Resolution 36
July 17, 2001
298
125
70%
108th
House Joint Resolution 4
June 3, 2003
300
109th
House Joint Resolution 10
June 22, 2005
285
130
69%
Senate Joint Resolution 12
June 27, 2006 66 34
66%

25. States’ Actions in Support of Flag Protection Amendment
All 50 states have passed resolutions
48 states still have flag desecration laws in place

26. 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, Prepared for the Citizen’s Flag Alliance

27. 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, Prepared for the Citizen’s Flag Alliance

28. Desecrating Other Symbols
Civic?

29. Desecrating Other Symbols
Personal?
Effigy of Representative Frank Kratovil in 2009

30. Desecrating Other Symbols
Religious?

31. 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 soul-damning, nation-destroying filth.”
Recent Scheduled Protests:
Fort Hood Memorial on Nov. 10
Veterans’ sites on Nov. 11
A Jewish high school on Nov. 12

32. Protected Speech? Nazi March in Skokie Chase Harper How to be a Hitman
Anarchist’s Cookbook
Geert Wilders
Crush Videos
Town Hall Meetings