United States v. Eichman

United States v. Eichman involved two consolidated appeals by the United States in cases in which appellees had been prosecuted for publicly burning American flags in violation of the 1989 Flag Protection Act. This law prohibited the knowing mutilation, defacement, physical defilement, burning of, or trampling on any American flag. Two U.S. district courts ruled the act unconstitutional, based on the Supreme Court's ruling in Texas v. Johnson (1989). Johnson had declared unconstitutional a Texas statute that prohibited knowing desecration of venerated objects in a manner that“the actor knows will seriously offend one or more persons”(p. 400). Texas had applied the statute to a person who had burned an American flag during a protest at the Republican national convention in Dallas in 1984. Indeed, Congress passed the Flag Protection Act in order to give the Supreme Court an opportunity to reconsider its Johnson ruling.

In Johnson, Justice William Brennan found Texas's statute invalid because Texas's interest in preserving the flag as a symbol of nationhood was integrally related to the state's disagreement with the message conveyed. The law became operctive“only” when a person's treatment of the flag communicates some message”(pp. 12–13). This basis for state action violated the central First Amendment tenet that political speech may not be abridged simply because of its content, however controversial. Texas's law went beyond a mere“time, place, and manner” regulation, which is directed at only the“incidental effects” of expressive conduct, such as excessive noise or unsafe conduct, rather than the message, per se. Accordingly, the Supreme Court applied the strictest standard of review to the law, rather than the more deferential standard that governs restrictions relating only to incidental effects. (U.S. v. O'Brien, 1968).

In Eichman, however, the government contended that the Flag Protection Act was not directed at offensive expressive conduct, but rather at all forms of flag mistreatment. The law did not single out“offensive” forms of mistreatment, as had Texas's law. Thus, the United States maintained that the act should not be subject to the most exacting constitutional scrutiny.

The Supreme Court disagreed:“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’”(p. 2408). Justice Brennan intimated that a majority of the Court would construe virtually any law directed at forms of flag desecration as constitutionally suspect, for such laws are inescapably linked to government's disapproval of the message conveyed.

In dissent, Justice John Paul Stevens maintained that the Flag Protection Act and similar laws are consistent with the First Amendment. First, they leave protestors with ample alternative means of conveying their ideas, so the impact on free speech is minimal. Second, they are more neutral concerning the specific content of speech than the majority alleged.”The flag uniquely symbolizes the ideas of liberty, equality, and tolerance… the message thereby transmitted [by the flag] does not take a stand upon our disagreements, except to say that those disagreements are best regarded as competing interpretations of shared ideals”(p. 2411).

Eichman reaffirmed the Court's commitment to protecting extremely provocative expression.

— Donald A. Downs

United States v. Eichman
Supreme Court of the United States
Argued May 14, 1990 Decided June 11, 1990
Full case name: United States v. Shawn Eichman et al. Citations: 496 U.S. 310 Prior history: Unknown Subsequent history: Unknown
Holding
The government's interest in preserving the flag as a symbol did not outweigh the individual right to disparage that symbol through expressive conduct.
Court membership
Chief Justice William Rehnquist Associate Justices William J. Brennan, Byron White, Thurgood Marshall, Harry Blackmun, John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy
Case opinions
Majority by: Brennan Joined by: Marshall, Blackmun, Scalia, Kennedy Dissent by: Stevens Joined by: Rehnquist, White, O'Connor
Laws applied
U.S. Const. Amend. I

United States v. Eichman, 496 U.S. 310 (1990) was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v. Haggerty.

The case involved a challenge to the 1989 Flag Protection Act, which forbade the burning or other desecration of the American flag, while allowing for burning as a means of proper disposal of worn or soiled flags. The Act was passed in response to the Court's controversial 1989 decision in Texas v. Johnson, 491 U.S. 397 (1989), which upheld flag burning as an act of protected speech under the First Amendment.

The defendants in Eichman, Shawn Eichman, Dave Blalock and Scott Tyler (along with Gregory "Joey" Johnson, who was not arrested), had burned American flags on the steps of the United States Capitol to protest American foreign and domestic policy. In the jointly decided case, Mark Haggerty, Carlos Garza, Jennifer Campbell, and Darius Strong were charged (based on surveillance photos) for burning a flag at a mass demonstration in Seattle, Washington on the stroke of midnight when the Flag Protection Act went into effect.

Federal District Courts in both cases ("Eichman" and "Haggerty") dismissed the charges on the basis of the unconstitutionality of the Flag Protection Act, relying on Texas v. Johnson. The government appealed both decisions. Under the terms of the Flag Protection Act, the appeals went directly to the Supreme Court (bypassing the Courts of Appeal). The Supreme Court was required to hear these appeals, without the choice of whether to grant certiorari, and was required to hear them on an expedited basis. The Supreme Court therefore scheduled a special session for oral argument on these cases, which were joined on appeal and argued together case alone on May 14, 1990, long after the conclusion of its normal calendar of oral argument for the term.

In a 5-4 decision (with the justices voting the same way they did in Texas v. Johnson), the Court reaffirmed Johnson and struck down the law against flag burning. Brennan stated in the Court's opinion that "Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering."

The defendants were represented in the Supreme Court by attorneys William Kunstler and David D. Cole, with the oral argument conducted by Kunstler. The United States was represented by Kenneth Starr, then Solicitor General.

The defendants in the Washington, DC case—Eichman, Blalock, and Tyler—had been charged only with flag desecration. The defendants in the Seattle case—Haggerty, Garza, Campbell, and Strong—had also been charged with destruction of government property, since one of the flags they were accused of burning was alleged to have been stolen from the Capital Hill (Seattle) Post Office. On remand following the Supreme Court decision upholding the dismissal of the flag desecration charge, the four Seattle defendants pled guilty to the surviving charge of destruction of government property. All four were fined various amounts, and Garza and Strong, who had prior convictions on other charges, were sentenced to three days each in jail.

See also

• List of United States Supreme Court cases, volume 496
• List of United States Supreme Court cases
• Lists of United States Supreme Court cases by volume
• List of United States Supreme Court cases by the Rehnquist Court

External links

• US vs. Eichman audio recording of oral argument, May 14, 1990
• US vs. Eichman full text of the opinion
• First Amendment Library entry on Eichman v. United States
• Street v. New York
• Texas v. Johnson

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