U.S. v. Eichman 1990

Facts:
In Texas v. Johnson (1989), the Court reversed Gregory Lee Johnson's conviction for desecrating a venerated object (burning a U.S. flag) during the 1984 Republican National Convention in Dallas. In Johnson, the Court agreed with the Texas Court of Criminal Appeals' determination that Johnson's conduct was symbolic speech protected by the First Amendment (p. 400), and it also agreed with the Texas Court that the state's asserted interest in preventing breach of the peace was not relevant in the case, and that the state's asserted interest in preserving national unity was related to the suppression of expression, and, therefore failed the third prong of the O'Brien test.

After the Court's ruling in Johnson, President Bush proposed a constitutional amendment that would remove flag burning from First Amendment protection. Congress rejected the Bush proposal. Then, Congress tried to pass a law that would protect the flag while satisfying the Court ruling in Johnson. Within minutes after the Flag Protection Act of 1989 went into effect, Shawn Eichman burned several flags on the steps of the U.S. Capitol. That same night, Mark John Haggerty set fire to a U.S. flag in from of the U.S. Courthouse in Seattle. Eichman (in DC) and Haggerty (in Seattle) were arrested and charged with violating the Act.

In court, each moved to dismiss the flag burning charge on the ground that the Act violated the First Amendment. Both district courts, following the ruling in Johnson, held the Act unconstitutional and dismissed the charges.

Case consolidation:
The U.S. requested expedited appeal to the USSC on both cases (as permitted in the Act), and the Court agreed to hear both cases and consolidated them into one.

Substantive Issue:
Does the Flag Protection Act of 1989 violate the First Amendment by prohibiting symbolic expression?

Court Ruling: Affirmed (government loses) 5-4
Mr. Justice Brennan wrote for the majority
(Brennan, Marshall, Blackmun, Scalia, Kennedy)

Reasoning:

• Upholds ruling in Johnson that the government's interest in protecting the flag (national unity) is an interest related to suppression of free expression within the meaning in O'Brien.
•  The Act is not content-neutral because it allows prosecution for disrespectful burning but allows for respectful burning.
• The government's claim of wanting to protect "the physical integrity" of the flag is transparent.
• Government may not ban the expression of an idea simply because it finds the idea offensive.

Dissent:
In dissent, Justice Stevens (joined by Rehnquist, White, and O'Connor) argued that society should be able to protect the flag because it uniquely symbolizes faith in national institutions.

Rule:

• Burning a U.S. flag is symbolic expression protected by the First Amendment.
• Affirms the test established in O'Brien