What was the First Amendment case United States v. Eichman 1990?

Answer 1

Flag Protection Act of 1989

In response to the Supreme Court ruling overturning the Texas Venerable Objects statute in the First Amendment flag desecration case Texas v. Johnson, 491 US 397 (1989), Congress amended the Federal Flag Desecration Law it passed in 1968 to make the language more "content neutral" to conform to the ruling in Johnson. Congress made all instances of flag burning (except destroying old or soiled flags) prohibited without referring to contempt or the observation of third-party individuals, in an attempt to avoid a First Amendment challenge similar to the one in Johnson.

United States v. Eichman, 496 US 310 (1990)

After Congress passed the Flag Protection Act of 1989, thousands of people burned flags in protest. Defendants Shawn Eichman, Dave Blalock, and Scott Tyler burned American flags on the steps of the United States Capitol in protest of American foreign and domestic policies. The three were arrested and charged with a federal crime.

The District Court for the District of Columbia ruled that the Flag Protection Act was unconstitutional because it violated First Amendment protections, so they dismissed charges against the three young men.

Under a provision of the Flag Protection Act, any failed challenge to the legislation went directly to the US Supreme Court, bypassing the US Court of Appeals for the District of Columbia Circuit, which would usually hear the trial court appeal.

The United States appealed to the Supreme Court, where the Eichman case was consolidated with Haggerty, et al., a group of young people who had been photographed burning an American flag at a protest rally in Seattle, Washington, and granted certiorari by the Supreme Court.

The Court ruled 5-4 in the defendants' favor, on the grounds that the government was violating First Amendment protections and attempting to inhibit political expression against the government. The Court stated that the flag was merely a symbol, an object that represents something else, and that desecration does not harm the underlying principles or institution. "Destroying a symbol sends a message about a person's attitudes towards, interpretation of, or beliefs about that symbol and what it represents." The Court accused Congress of passing the legislation because desecration of the flag offends others, not because they wanted to "protect a piece of cloth."

Brennan stated in the majority opinion that "Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering."

Because the Court made clear its opinion that flag laws represent a deliberate attempt to restrict constitutionally protected speech, Congress and the States did not pass further legislation against flag burning.

Congress has, however, made at least seven attempts to overrule the Supreme Court by passing a Constitutional Amendment making an exception to the First Amendment that would allow the federal government to ban flag burning. Although the House Resolutions have passed several times, the bill has consistently failed in the Senate.

For more information on Texas v. Johnson and other flag desecration cases, see Related Links, below.