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United States v. Eichman

United States v. Eichman
Argued May 14, 1990
Decided June 11, 1990
Full case name United States v. Shawn Eichman et al.
Citations 496 U.S. 310 (more)
Prior history Consolidation of United States v. Eichman (D.D.C.), 731 F.Supp. 1123 (1990) and United States v. Haggerty (W.D.Wash), 731 F.Supp. 415 (1990)
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
</td></tr><tr><th colspan="2" style="text-align:center;background-color: #99c0ff; white-space:nowrap">Case opinions</th></tr><tr><th scope="row" style="text-align:left">Majority</th><td>

Brennan, joined by Marshall, Blackmun, Scalia, Kennedy</td></tr><tr><th scope="row" style="text-align:left">Dissent</th><td> Stevens, joined by Rehnquist, White, O'Connor</td></tr><tr><th colspan="2" style="text-align:center;background-color: #99c0ff; white-space:nowrap">Laws applied</th></tr><tr><td colspan="2" style="text-align:center"> U.S. Const. amend. I</td></tr></table> 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. It built on the opinion handed down in the Court's 1989 decision in Texas v. Johnson, which invalidated on First Amendment grounds a Texas state statute banning flag-burning.


In response to Texas v. Johnson, the 101st Congress passed the Flag Protection Act of 1989, which attempted to circumvent the Johnson ruling by prohibiting mistreatment of the flag without regard to any message being conveyed.[1] On the day that the law took effect, protests were staged around the nation. Demonstrators at two of these incidents, in Seattle and Washington, D.C., were arrested and charged under the revised statute.

In Seattle, Mark Haggerty and three other Revolutionary Communist Party supporters were charged with burning a flag outside a post office shortly after midnight, moments after the law took effect.[2]

In Washington, D.C., Gregory Lee Johnson, the defendant in Texas v. Johnson, staged a protest together with three companions – artists Scott Tyler and Shawn Eichman and Vietnam veteran David Blalock – by burning flags on the steps of the Capitol before a crowd of reporters and photographers.[3] Tyler had recently aroused controversy with a "flag on the floor" exhibit at the Art Institute of Chicago.[4] Eichman was a member of the Coalition Opposed to Censorship in the Arts, and Blalock was a member of the Vietnam Veterans Against the War Anti-Imperialist. All four were supporters of the Revolutionary Communist Youth Brigade.[2] On the day of the protest they released a statement calling for others to express opposition to "compulsory patriotism" by burning the flag.[5]

In both cases, federal district judges in Seattle and Washington, D.C. dismissed charges brought against the protesters, citing Texas v. Johnson. U.S. attorneys appealed the decisions directly to the Supreme Court. Because the Flag Protection Act called for expedited review, the two cases were consolidated into United States v. Eichman (1990), which would serve as a test case for the amended statute.[2]


The Supreme Court held that the government cannot prosecute a person for burning a United States flag, because to do so would be inconsistent with the First Amendment. The Government conceded that flag-burning constitutes expressive conduct and enjoys the First Amendment's full protection. It is clear that the Government's asserted interest in protecting the "physical integrity" of a privately owned flag in order to preserve the flag's status as a symbol of the Nation and certain national ideals, is related to the suppression, and concerned with the content of free expression.

The mere destruction or disfigurement of a symbol's physical manifestation does not diminish or otherwise affect the symbol itself. The Government's interest is implicated only when a person's treatment of the flag communicates a message to others that is inconsistent with the identified ideals of the flag. The precise language of the Act's prohibitions confirms Congress' interest in the communicative impact of flag destruction, since each of the specified terms – with the possible exception of "burns" – unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's symbolic value. This is further supported by the Act's explicit exemption for disposal of "worn or soiled" flags, which the Act protects from prosecution since disposing a worn or soiled flag does not desecrate the flag's symbolic nature. Thus, the Act is struck down as its restriction on expressive conduct cannot "‘be justified without reference to the content of the regulated speech,'" Boos v. Barry, 485 U.S. 312, 320. It must therefore be subjected to "the most exacting scrutiny," id. at 321, which cannot justify its infringement on First Amendment rights. While flag desecration – like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures – is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. pp. 313–319.

Subsequent actions

On remand, the Eichman case was dismissed, as those defendants had only been charged with flag desecration. However, the Haggerty case had an additional charge of destruction of government property, as the burned flag was alleged to have been stolen from Seattle's Capitol Hill Post Office. To that charge, all four Seattle defendants pled guilty and were fined. Carlos Garza and Darius Strong (who had prior convictions) served 3 days in jail each.

When Republicans retook control of Congress for the 104th session, the Flag Desecration Amendment was first proposed, which would grant the federal government the authority to proscribe flag burning. A resolution for this Amendment passed the House in every session from the 104th until the 109th Congress, but never got past the Senate (in the most recent vote, passage in the Senate failed by one vote), and has not been considered since the 109th Congress.

See also


  1. ^ Goldstein 1996a, p. 254.
  2. ^ a b c Welch 2000, p. 74.
  3. ^ Goldstein 1996a, p. 233.
  4. ^ Goldstein 1996a, p. 77.
  5. ^ Goldstein 1996b, p. 241.


  • Goldstein, Robert Justin (1996a). Burning the Flag: The Great 1989-1990 American Flag Desecration Controversy. Kent State University Press. ISBN 9780873385985. 
  • Goldstein, Robert Justin (1996b). Desecrating the American Flag: Key Documents of the Controversy from the Civil War to 1995. Syracuse University Press. ISBN 9780815627166. 
  • Welch, Michael (2000). Flag Burning: Moral Panic and the Criminalization of Protest. Transaction Publishers. ISBN 9780202366128. 

External links

  • Text of United States v. Eichman, 496 U.S. 310 (1990) is available from:  Findlaw  Justia  Esquilax