United States v. Eichman (1990)

Eichman and others were prosecuted under the federal Flag Protection Act for setting fire to American flags. Eichman and the others stated that the Act violated the First Amendment, and courts in Washington State and in the District of Columbia agreed. The United States Government then appealed to the Supreme Court.

In a 5-4 decision, the Supreme Court held that flag burning was a form of expression protected under the First Amendment.

Justice William Brennan wrote for the majority. He rejected the government's argument that the law protects the flag's integrity as a national symbol. The law's intent, he stated, is to punish people who burn the flag as a way of communicating their ideas and beliefs. Finally, Justice Brennan refused to consider Congress's finding of a “national consensus,“ or agreement, against flag burning. “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.“

Dissenting, Justice John Paul Stevens argued that the government can put limited restrictions on expression if there is a legitimate reason for them that is unrelated to the ideas being expressed and if other methods of expression are available as alternatives. Justice Stevens felt those who might choose to burn the flag as a means of expression could also find other ways of communicating their ideas.

Justice Stevens commented, “What I regard as the damage to the symbol…has already occurred as a result of this Court's decision to place its stamp of approval on the act of flag burning. A formerly dramatic expression of protest is now rather commonplace.“

As a consequence of the Court's decision, the House of Representatives voted to adopt proposed constitutional amendments banning flag desecration in 1990, 1995, 1997, and 2000. However, the amendment has never received the necessary two-thirds approval in the Senate.

During the 2000 debates on the amendment, Robert Byrd (D., West Virginia), a senior and highly respected member of the Senate, announced that he had changed his position and now opposed the amendment. Although he continued to find flag burning “deeply offensive,“ he had concluded that the amendment would be out of place in the Constitution. “It is that Constitution,“ he said, “that provides us with the rights that all Americans enjoy…it isn't the flag.“

The Senate Majority Leader, Trent Lott (R., Mississippi) disagreed. “The American flag is a sacred, basic, fundamental symbol of our nation's ideals, the symbol of those fundamental values for which we have asked our young men and women to fight and die,“ he said. “Allowing the desecration of our national symbol is not a sign of strength, it's a sign of self-indulgence.“