Flag Protection: A Brief History and Summary of Recent Supreme Court Decisions and Proposed Constitutional Amendment








Prepared for Members and Committees of Congress



Many Members of Congress see continued tension between “free speech” decisions of the
Supreme Court, which protect flag desecration as expressive conduct under the First Amendment,
and the symbolic importance of the United States flag. Consequently, every Congress that has
convened since those decisions were issued has considered proposals that would permit th
punishment of those who engage in flag desecration. The 106 Congress narrowly failed to send a th
constitutional amendment to allow punishment of flag desecration to the states. In the 107 and th

108 Congresses, such proposals were passed by the House.


This report is divided into two parts. The first gives a brief history of the flag protection issue,
from the enactment of the Flag Protection Act in 1968 through current consideration of a
constitutional amendment. The second part briefly summarizes the two decisions of the United
States Supreme Court, Texas v. Johnson and United States v. Eichman, that struck down the state
and federal flag protection statutes as applied in the context punishing expressive conduct.
In 1968, Congress reacted to the numerous public flag burnings in protest of the Vietnam conflict
by passing the first federal flag protection act of general applicability. For the next 20 years, the
lower courts upheld the constitutionality of this statute and the Supreme Court declined to review
these decisions. However, in Texas v. Johnson, the majority of the Court held that a conviction for
flag desecration under a Texas statute was inconsistent with the First Amendment and affirmed a
decision of the Texas Court of Criminal Appeals that barred punishment for burning the flag as
part of a public demonstration.
In response to Johnson, Congress passed the federal Flag Protection Act of 1989. But, in
reviewing this act in United States v. Eichman, the Supreme Court expressly declined the
invitation to reconsider Johnson and its rejection of the contention that flag-burning, like
obscenity or “fighting words,” does not enjoy the full protection of the First Amendment as a
mode of expression. The only question not addressed in Johnson, and therefore the only question
the majority felt necessary to address, was “whether the Flag Protection Act is sufficiently distinct
from the Texas statute that it may constitutionally be applied to proscribe appellees’ expressive
conduct.” The majority of the Court held that it was not.
Congress, recognizing that Johnson and Eichman had left little hope of an anti-desecration statute
being upheld, has considered in each Congress subsequent to these decisions a constitutional th
amendment to empower Congress to protect the physical integrity of the flag. In the 111
Congress, resolutions have been introduced in both the House and the Senate. H.J.Res. 8 and
S.J.Res. 2 each propose an amendment to the Constitution of the United States authorizing the
Congress and the States to prohibit the act of desecration of the flag of the United States and to
set criminal penalties for that act.






Histor y ............................................................................................................................................. 1
Texas v. Johnson..............................................................................................................................3
United States v. Eichman.................................................................................................................5
Author Contact Information............................................................................................................6





any Members of Congress see continued tension between “free speech” decisions of
the Supreme Court, which protect flag desecration as expressive conduct under the
First Amendment, and the symbolic significance of the United States flag. M


Consequently, every Congress that has convened since those decisions were issued has
considered possible measures to permit the punishment of those who engage in flag desecration.
This report is divided into two parts. The first gives a brief history of the flag protection issue,
from the enactment of the Flag Protection Act in 1968 through current consideration of a
constitutional amendment. The second part briefly summarizes the two decisions of the United
States Supreme Court, Texas v. Johnson and United States v. Eichman, that struck down the state
and federal flag protection statutes as applied in the context punishing expressive conduct.

In 1968, in the midst of the Vietnam conflict, Congress enacted the first Federal Flag Protection 1
Act of general applicability. The law was occasioned by the numerous public flag burnings in 2
protest of the war. For the next 20 years, the lower courts upheld the constitutionality of the 3
federal statute and the Supreme Court declined to review these decisions.
However, during the 20-year period between enactment of the Flag Protection Act and its
Johnson decision, the Supreme Court did visit the flag issue three times. Each time the Court
found a way to rule in favor of the protestor and overturn a state conviction on very narrow
grounds, avoiding a definitive ruling on the constitutionality of convictions for politically inspired 45
destruction or alteration of the American flag. In Street v. New York, the Court overturned a state
conviction for flag-burning, holding that the flag-burner was prosecuted for his words rather than 6
his acts. In 1974, the Court overturned a prosecution by finding that the state statute was vague. 7
In Spence v. Washington, the Court held that the taping of a peace symbol to a flag was
expressive conduct and thus protected by the First Amendment. In both of these later cases the 8
Court expressly referred to the federal statute in a positive manner.
It was against this background, that the Supreme Court took the Johnson case. In 1984, during the
Republican National Convention in Dallas, Texas, Johnson had participated in a demonstration
protesting the policies of the Reagan administration. In front of the city hall, Johnson unfurled an
American flag, which another member of the demonstration had taken from a flag pole and had

1 P.L. 90-381, 82 Stat. 291 (1968), codified at 18 U.S.C. § 700. Prior to this act there was an act which prohibited
desecration of the flag in the District of Columbia.
2 See, S.Rept. 90-1287, 90th Cong., 2nd Sess. 2 (1968).
3 See, e.g. Joyce v. United States, 454 F.2d 971 (D.C. Cir. 1971), cert. den. 405 U.S. 969.; United States v. Crosson,
462 F.2d 96 (9th Cir. 1972), cert. den. 409 U.S. 1064; and Kime v. United States, 673 F.2nd 1318 (4th Cir. 1982), cert.
den. 459 U.S. 949.
4 See, John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First
Amendment Analysis, 88 Harv. L. Rev. 1482 (1975) and Charles Tiefer, The Flag-Burning Controversy of 1989-1990:
Congress Valid Role in Constitutional Dialogue, 29 Harv. J. on Leg. 357 (1992).
5 394 U.S. 576 (1969).
6 Smith v. Goguen, 415 U.S. 566 (1974).
7 418 U.S. 405 (1975).
8 Goguen, at 582 and Spence at 415.



given to him, doused it with kerosene, and set it on fire. He was charged with the desecration of a 9
venerated object in violation of a Texas statute. Johnson was tried, convicted, and sentenced to
one year in prison and fined $2,000. The conviction was upheld by the Court of Appeals of the 1011
Fifth District of Texas at Dallas. The Texas Court of Criminal Appeals reversed. In a 5 to 4 12
decision, the U.S. Supreme Court affirmed this reversal on June 21, 1989, thus, in effect,
holding that the flag protection statutes of 47 states and the federal statute could not be applied to 13
a flag burning that was part of a public demonstration.
In response to this decision, Congress enacted the Flag Protection Act of 1989.14 The act changed
the focus of the protection granted the flag from protecting it against desecration, which the Court
had ruled unconstitutional, to protecting its physical integrity. The primary purpose of amending
the federal desecration statute was to remove any language which the courts might find made the
statute one that was aimed at suppressing a certain type of expression. If the statute was neutral as
to expression—for instance, if it proscribed all burning of flags—then, its proponents argued, the
statute’s prohibitions might be judged under the constitutional test enunciated by the Court in
United States v. O’Brien. Under the O’Brien test, which is less strict than First Amendment
standards applied in expression cases, the government need only show that the statute furthers an
important or substantial governmental interest, and that the restriction on First Amendment 15
freedoms is no greater than is essential to the furtherance of that interest. All of the opinions in
Johnson had recognized a governmental interest in protecting the physical integrity of the flag to
some degree. Therefore, it was at least arguable that such a neutral statute would meet the second
part of the test.
The new statute made criminal intentionally mutilating, defacing, physically defiling, burning,
maintaining on the floor or ground, or trampling upon the flag of the United States. Exemption
was given for conduct consisting of disposal of a worn or soiled flag. The term “flag of the
United States” was defined to mean any flag of the United States, or any part thereof, made of
any substance, of any size, in a form that is commonly displayed. Provision was made for
expedited Supreme Court review of the constitutionality of the act.
The Flag Protection Act of 1989 became effective on October 28, 1989. On that date protesters in
Seattle Washington and Washington D.C. were arrested for violation of the new Act. These cases
were dismissed upon findings that the act was unconstitutional as applied to their burning a 16
United States flag in a protest context. The D.C. and Seattle cases were appealed to the Supreme 17
Court under the act’s expedited review provision. On June 11, 1990, the Court announced its

9 Tex. Penal Code Ann. § 42.09 (1989).
10 706 S.W.2d 120 (1986).
11 755 S.W.2d 92 (1988).
12 Texas v. Johnson, 491 U.S. 397 (1989).
13 Alaska and Wyoming do not have this type of statute. For a list of the citations to the state flag desecration statutes in
effect at the time, see, Texas v. Johnson, at 428, n.1 (Rehnquist, C.J., dissenting) (1989).
14 P.L. 101-131 (H.R. 2978).
15 See, United States v. O’Brien, 391 U.S. 367, 377 (1968).
16 United States v. Haggerty, 731 F.Supp. 415 (W.D. Wa. 1990) and United States v. Eichman, 731 F.Supp. 1123
(D.D.C. 1990).
17 United States v. Eichman, 89-1433, and United States v. Haggerty, 89-1434.





ruling.18 In another 5 to 4 decision,19 the Court held that the Flag Protection Act of 1989 could not
be constitutionally applied to a burning of the flag in the context of a public protest.
In the summer of 1990, both Houses of Congress considered and failed to pass by the required 20
two-thirds vote an amendment to the Constitution which would have empowered Congress to
enact legislation to protect the physical integrity of the flag.
In six of the last seven Congresses, the House passed proposed Constitutional Amendments which
would have authorized Congress to enact legislation to protect the flag from physical 21th
desecration. In the 104 Congress, the Senate considered a “flag” Amendment, but came three 22th
votes short of passing it. In the 106 Congress, S.J.Res. 14 failed, by a vote of 63-37, to receive 23th
the necessary two-thirds vote in the Senate. In the 109 Congress, S.J.Res. 12 failed by a vote of 24

66 to 34 (one vote short of the necessary two-thirds required for passage). There were no “flag” thththth


Amendment votes in the Senate in the 105, 107, 108, or 110 Congresses.
In the 111th Congress, resolutions have been introduced in both the House and the Senate. 2526
H.J.Res. 8 and S.J.Res. 2 each propose an amendment to the Constitution of the United States
authorizing the Congress and the states to prohibit the act of desecration of the flag of the United
States and to set criminal penalties for that act. Should Congress approve a proposed flag
protection amendment by the required two-thirds majority of each House, the amendment would
only become effective upon ratification by the legislatures of three-fourths of the states.

In Texas v. Johnson, the majority of the Court held that Johnson’s conviction for flag desecration,
under a Texas statute, was inconsistent with the First Amendment and affirmed the decision of the

18 United States v. Eichman, 496 U.S. 310 (1990).
19 It should be noted that both Johnson and Eichman were 5 to 4 decisions with the division of the Court identical.
Justice Brennan delivered the opinion of the Court, in which Justices Marshall, Blackmun, Scalia, and Kennedy, joined.
The dissenting justices were Chief Justice Rehnquist, Justices Stevens, White, and OConnor. Three of the majority
justices are no longer on the Court, Justice Brennan being replaced by Justice Souter, Justice Marshall being replaced
by Justice Thomas, and Justice Blackmun being replaced by Justice Ginsburg. One of the minority justices has been
replaced, Justice White being replaced by Justice Breyer.
20 The vote in the House was 254 to 177 (34 votes short of two thirds). The vote in the Senate was 58 to 42 (9 votes
short of two thirds).
21 In the 104th Congress, the House, by a vote of 312 to 120 passed H.J.Res. 79, CONG. REC. H6446 (daily ed. June
28, 1995) (record vote no. 431). In the 105th Congress, the House, by a vote of 310 to 114 passed H.J.Res. 54, 143 th
CONG. REC. H.R. 56 (daily ed. June 12, 1997) (record vote no. 202). In the 106 Congress, the House, by a vote of th
305 to 124 passed H.J.Res. 33, 145 CONG. REC. H4844 (daily ed. June 24, 1999) (record vote no. 252). In the 107
Congress, the House, by a vote of 298 to 125 passed H.J.Res. 36, 147 CONG. REC. H4068 (daily ed. July 17, 2001) th
(record vote no. 232). In the 108 Congress, The House, by a vote of 300 to 125 passed H.J.Res. 4, 149 CONG. REC. th
H4842 (daily ed. June 3, 2003)(record vote no.234). In the 109 Congress, the House, by a vote of 286 to 130, passed
H.J.Res. 10, 151 CONG. REC. H4927 (daily ed. June 22, 2005)(record vote no. 296).
22 On December 12, 1995, the Senate, by a vote of 63 to 36, failed to pass S.J.Res. 31, 141 CONG. REC. S18394 (daily
ed. December 12, 1995)(record vote no. 600)(with 99 Sens. voting, 66 votes were required for passage).
23 146 CONG. REC. S1874 (daily ed. March 29, 2000)(record vote no. 48).
24 152 CONG. REC. S6546 (daily ed. June 27, 2006)(record vote no. 189).
25 Introduced by Mrs. Emerson, 155 CONG. REC. H70 (daily ed. January 7, 2009).
26 Introduced by Mr. Vitter, 155 CONG. REC. S43 (daily ed January 6, 2009).





Texas Court of Criminal Appeals that held that Johnson could not be punished for burning the
flag as part of a public demonstration.
The opinion outlined the questions to be addressed in a case where First Amendment protection is
sought for conduct rather than pure speech. First, the Court must determine if the conduct in
question is expressive conduct. If the answer is yes, then the First Amendment may be invoked,
and the second question must be answered. The second question is whether the state regulation of
the conduct is related to the suppression of expression. The answer to this question determines the
standard which will be utilized in judging the appropriateness of the state regulation.
The test of whether conduct is deemed expressive conduct sufficient to bring the First
Amendment into play is whether an intent to convey a particularized message was present, and 27
whether the likelihood was great that the message would be understood by those who viewed it.
The opinion emphasizes the communicative nature of flags as previously recognized by the 28
Court, but states that not all action taken with respect to the flag is automatically expressive. 29
The context in which the conduct occurred must be examined. The majority found that
Johnson’s conduct met this test. The burning of the flag was the culmination of a political
demonstration. It was intentionally expressive, and its meaning was overwhelmingly apparent. In
these circumstances the burning of the flag was conduct “sufficiently imbued with elements of 30
communication” to implicate the First Amendment.
The finding that burning the flag in this circumstance was expressive conduct required the Court
next to look at the statute involved to see if it was directly aimed at suppressing expression or if
the governmental interest to be protected by the statute was unrelated to the suppression of free
expression. If the statute were of the latter type, the government would need only show that it
furthers an important or substantial governmental interest, and that the restriction on First 31
Amendment freedoms is no greater than is essential to the furtherance of that interest. If the
statute was aimed at suppression of expression, then it could be upheld only if it passed the most 32
exacting scrutiny.
Texas offered two state interests which it sought to protect with this statute: prevention of
breaches of the peace; and preservation of the flag as a symbol of nationhood and national unity.
The majority rejected the first of these interests as not being implicated in the facts of this case.
No disturbance of the peace actually occurred or was threatened. The opinion also points out that 33
Texas has a statute specifically prohibiting breaches of the peace, which tends to confirm that 34
flag desecration need not be punished to keep the peace.

27 Texas v. Johnson, 491 U.S. 397, at 405 (1989), citing Spence v. Washington, 418 U.S. 405, 410-411 (1974).
28 See, West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (pledge of allegiance), Spence v. Washington, 418
U.S. 405 (1974) (attaching a peace sign to the flag), Stromberg v. California, 283 U.S. 359 (1931) (displaying a red
flag), and Smith v. Goguen, 415 U.S. 566 (1974) (wearing a flag on the seat of ones pants).
29 Johnson, at 406.
30 Id.
31 See, United States v. O’Brien, 391 U.S. 367, 377 (1968).
32 Johnson, at 412, citing Boos v. Barry, 485 U.S. 312, 321 (1988).
33 Tex. Penal Code Ann. § 42.01 (1989).
34 Johnson, at 410.





The second governmental interest, that of preserving the flag as a symbol of national unity, was 35
found by the majority to be directly related to expression in the context of activity. The Texas
law did not cover all burning of flags. Rather it was designed to protect it only against abuse that
would be offensive to others. Whether Johnson’s treatment of the flag was proscribed by the
statute could only be determined by the content of his expression. Therefore, exacting scrutiny 36
must be applied to the statute.
The majority held that the Texas statute could not withstand this level of scrutiny. There is no
separate constitutional category for the American flag. The government may not prohibit
expression of an idea merely because society finds the idea offensive, even when the flag is
involved. Nor may a state limit the use of designated symbols to communicate only certain 37
messages.

The Court in reviewing the Flag Protection Act of 1989 in United States v. Eichman expressly
declined the invitation to reconsider Johnson and its rejection of the contention that flag-burning
as a mode of expression, like obscenity or “fighting words,” does not enjoy the full protection of 38
the First Amendment. The only question not addressed in Johnson, and therefore the only
question the majority felt necessary to address, was “whether the Flag Protection Act is
sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe 39
appellees’ expressive conduct.”
The government argued that the governmental interest served by the act was protection of the
physical integrity of the flag. This interest, it was asserted, was not related to the suppression of
expression and the act contained no explicit content-based limitations on the scope of the
prohibited conduct. Therefore the government should only need to show that the statute furthers
an important or substantial governmental interest, and that the restriction on First Amendment 40
freedoms is no greater than is essential to the furtherance of that interest.
The majority, while accepting that the act contained no explicit content-based limitations, rejected 41
the claim that the governmental interest was unrelated to the suppression of expression. The
Court stated:

35 Id., citing Spence at 414 n. 8.
36 Id. at 412.
37 Id. at 415-416.
38 United States v. Eichman, 496 U.S. 310, at 315 (1990). The majority also declined to reassess Johnson in light of
Congress’ recognition of anational consensus” favoring a prohibition on flag-burning, stating:
Even assuming such a consensus exists, any suggestion that the Government’s interest in suppressing speech becomes
more weighty as popular opposition to that speech grows is foreign to the First Amendment. Id. at 318.
39 Id.
40 See, United States v. O’Brien, 391 U.S. 367, 377 (1968).
41 The opinion notes that there are at least two other interests the government has in protecting the flag, but these
interests are not involved in the context of flag-burning of a privately owned flag. The decision does not affect the
extent the government’s interest in protecting publicly owned flags might justify special measures on their behalf.
Eichman, at 316, nt. 5. The government, also, has a legitimate interest in preserving the flag’s function as anincident
of sovereignty,” but the facts of this case did not interfere or threaten that interest. Id. at 316, nt. 6.





The Government’s interest in protecting the physical integrity of a privately owned flag
rests upon a perceived need to preserve the flag’s status as a symbol of our Nation and
certain national ideals. But the mere destruction or disfigurement of a particular physical
manifestation of the symbol, without more, does not diminish or otherwise affect the symbol
itself in any way. For example, the secret destruction of a flag in ones own basement would
not threaten the flags recognized meaning. Rather, the Governments desire to preserve the
flag as a symbol for certain national ideals is implicated only when a person’s treatment of 42
the flag communicates [a] message” to others that is inconsistent with those ideals.
In essence the Court said that the interest protected by the act was the same interest which had
been put forth to support the Texas statute and rejected in Johnson.
The opinion went on to analyze the language of the act itself. Again, while there was no explicit
limitation found in this language, the majority found that each of the specified terms, with the
possible exception of “burns,” unmistakably connoted disrespectful treatment of the flag and thus 43
argues against the expression neutrality of the act. Therefore, although the act was “somewhat
broader” than the Texas statute, it still suffered from the same fundamental flaw, namely it 44
suppressed expression out of concern for its likely communicative impact. This being the case,
the Majority found that the O’Brien test was inapplicable and the act must be subject to “the most
exacting scrutiny.” As in Johnson, the statute in question could not withstand this level of
scrutiny.
John R. Luckey
Legislative Attorney
jluckey@crs.loc.gov, 7-7897


42 Eichman, at 315-316.
43 Id. at 317.
44 Id. at 318.