United States v. Eichman

Background

The federal government prosecuted groups of protesters who set fire to United States flags on the Capitol steps and in Seattle under the Flag Protection Act of 1989. The protesters said their flag burning was political speech. Two district courts, relying on an earlier decision, dismissed the flag-burning charges and the government appealed to this Court.

Reasoning

The Court asked whether burning a privately owned flag as part of a political protest can be punished under the federal law. Relying on its earlier decision, the Court concluded that burning a flag is expressive conduct protected by the First Amendment. It found the 1989 Act aimed at the communicative effect of the act and therefore treated it as content-based. The Court said the government’s interest in preserving the flag’s symbolic value cannot justify criminalizing expressive acts that communicate a message, so the law cannot be applied to punish these protesters.

Real world impact

The decision prevents federal criminal convictions under the Flag Protection Act for people who burn privately owned flags as protest. It leaves intact other types of prosecutions, such as charges for damaging federal property or for harming government-owned flags. The ruling emphasizes that popular dislike for certain protest methods does not allow the government to punish them simply because they offend.

Dissents or concurrances

A dissent argued that the government has a legitimate, non-speech-related interest in protecting the flag’s symbolic value and that regulating the method of expression can be permitted. The dissent would have allowed the law to stand.