United States v. Eichman
The Supreme Court struck down the federal Flag Protection Act of 1989, ruling that prosecuting protesters for burning American flags still violated the First Amendment, just as a similar state law had the year before in Texas v. Johnson.
Even though Congress wrote the new law without singling out offensive messages by name, the Court found it was still aimed at protecting the flag's symbolic meaning from being undermined by protest, which made it a restriction on speech that could not survive the toughest constitutional test.
“If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The majority's core First Amendment principle underlying its rejection of the flag-burning ban.
How it got here: Two federal trial courts dismissed the charges as unconstitutional under Johnson; the government appealed both rulings directly to the Supreme Court, which consolidated the cases.
The Case in Depth
What happened
Protesters burned American flags in two incidents — one on the Capitol steps in Washington, D.C. protesting government policy, and one in Seattle protesting the new federal flag-burning law itself. Both groups were charged under the Flag Protection Act of 1989, which Congress passed shortly after the Supreme Court struck down a Texas anti-desecration law in Texas v. Johnson.
The question before the Court
After Congress passed a new federal law against burning the American flag, could that law survive First Amendment scrutiny any better than the state law struck down in Texas v. Johnson?
Why it matters
The ruling confirmed that neither states nor Congress can criminalize flag burning as a form of political protest, closing off the main legislative response to Texas v. Johnson. It fueled a renewed push for a constitutional amendment to ban flag desecration, since ordinary legislation could not accomplish that goal.
What changes now
The decision is final on the merits and leaves the Flag Protection Act unenforceable against expressive flag burning nationwide. Because legislation could not achieve a ban, the ruling intensified efforts in Congress to pass a constitutional amendment allowing flag-desecration laws, though no such amendment has been adopted. The Seattle defendants still faced a separate charge for property damage, unaffected by this ruling.
What this does not decide
The Court expressly left open whether laws could regulate commercial use of the flag's image, protect government-owned flags specifically, or address conduct that damages a flag's physical integrity for reasons unrelated to communicating a message, such as protecting its role as a symbol of sovereignty.
Concurrences and dissents
Dissent — Justice Stevens
“the communicative value of a well-placed bomb in the Capitol does not entitle it to the protection of the First Amendment.”Stevens arguing that the right to communicate effectively is not absolute.
Justice Stevens argued the government has a legitimate, content-neutral interest in preserving the flag's symbolic value regardless of what a particular flag burner meant to say, and that this interest doesn't depend on suppressing any specific idea. He would have upheld the law because it leaves protesters free to express their views through other means, and because tolerating flag burning, in his view, actually diminishes the symbol's meaning for everyone. He would have reversed the district courts.
How the Court got there
The legal reasoning, step by step
- The Court first reaffirmed its holding from Texas v. Johnson that burning a flag as political protest is expressive conduct protected by the First Amendment, and declined the government's invitation to treat flag burning like obscenity or fighting words, categories of speech that get no First Amendment protection at all.
- The Court then asked whether the new federal law was different enough from the Texas law to escape the same fate. The Texas law explicitly punished only desecration that was likely to seriously offend onlookers, making its purpose to suppress a message plain on its face.
- Even though the federal law used neutral-sounding terms like mutilates, defaces, and tramples without mentioning offense to viewers, the Court found the government's own stated interest — preserving the flag's status as a symbol of nationhood — was still a concern about the message flag burning sends, not a content-neutral interest like preventing litter or fire hazards.
- Because the government's interest was tied to suppressing the communicative impact of the conduct, the Court applied the most exacting level of judicial review reserved for laws that target speech based on its content, rather than the more lenient test used for ordinary conduct regulations.
- Applying that strict test, the Court concluded the government's interest in protecting the flag's symbolism could not justify punishing the protesters, for the same reasons given a year earlier in Texas v. Johnson, so the law could not constitutionally be applied here.
Doctrinal impact
Cases affected by this decision
Reaffirms Texas v. Johnson (491 U.S. 397)
The Court relied on and extended its prior ruling that flag burning as protest is protected expressive conduct.