United States v. Eichman
Issue: Burning the American Flag

Flag Burning
Photograph courtesy of Jacques M. Chenet / Corbis

Further Internet Study
The Issue Before the Court
Majority Opinion
Dissenting Opinion
Cast Your Vote Online


The United States holds itself up to be the nation where human freedom finds its purest expression. Thomas Jefferson expressed this ideal in the Declaration of Independence when he penned the words:

"We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness."

The Declaration of Independence led to more specific language in the Constitution that gave Americans the freedom of speech. Many citizens claim this freedom means they can express themselves in any manner they wish as long as their right of expression does not infringe on the rights of others to be left alone. Others believe that there are exceptions to this right of free speech. Such issues are worked out by Supreme Court, which uses its powers of constitutional interpretation and judicial review to outline the underpinnings of the Constitution and explain the law.

The guiding principles for the Supreme Court are found in the Bill of Rights, which comprise the first ten amendments to the Constitution. The First Amendment outlines personal liberties in the freedoms of religion, speech, press, assembly and the right to petition the government or the redress of grievances. Since the Bill of Rights was adopted, conflicts over what types of speech or expression are protected by the Constitution have led the Supreme Court to provide some additional clarification. The definition of speech has come to include not only spoken words, but also symbolic speech as well as the two forms of speech together (known by the court as "speech plus"). This definition sometimes requires citizens to tolerate unpopular speech for the sake of preserving the spirit of the freedom itself.

In recent times, protesters have burned the American flag to express outrage at a political idea such as war, or even to challenge any objections to the burning of flags. Such behavior has outraged many Americans who feel that the flag is a symbol of the United States that should be protected from harm, and that burning flags should not be protected under the First Amendment. The Flag Protection Act of 1989 made a criminal of any citizen who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a United States flag, except in relation to the disposal of a "worn or soiled" flag. In a number of cases that came to the Federal district court, the courts dismissed the charges under the belief that the Act violated the free speech clause of the First Amendment. The government appealed the United States v. Eichman case to the Supreme Court in 1990.

Further Internet Study

Selected Historic Decisions of the U.S. Supreme Court - http://www.law.cornell.edu/supct/cases/historic.htm

To read more about the Freedom of Speech and the issue of flag burning, please visit these Web sites:

American Civil Liberties Union Press Release: Senate Rejects Flag Burning Amendment; ACLU Applauds Vote to Uphold Free Speech - http://www.aclu.org/news/n121295.html

Flag Burning Editorial Published in The Oak Ridger on August 2, 1995, as: No Amendment Needed on this 'Burning Issue' - http://www.star.org/oraclu/articles/amend.htm

A Detailed History of Flag Burning - http://www.indirect.com/user/warren/history.html

Citizen's Flag Alliance, a coalition in favor of a constitutional amendment to protect the American flag from physical desecration - http://www.cfa-inc.org/

The Issue Before the Court:

Is the action of burning an American flag within the context of a public protest constitute "expressive conduct," an idea that falls under the freedom of speech protection of the First Amendment?

Supreme Court Ruling: The burning of the American flag is considered "symbolic speech" and is protected under the First Amendment.

Majority Opinion Summary and Excerpt

The Supreme Court had ruled in 1989 in the case of Texas v. Johnson that the First Amendment rights of citizens to engage in free speech, even if that speech is "offensive," outweighs the government's interest in protecting the American flag as a symbol of American unity and prevents the breach of the peace which was argued to be the result of such an action. The action of flag burning, as repugnant as it may be to many citizens, was determined by the Supreme Court and Texas Court of Criminal Appeals, was defined as an example of "symbolic speech." In the Texas case, the court voted in a 6-2 decision to affirm the Criminal Appeal's court decision to bring flag burning under the protection of the First Amendment. In the Eichman case, the Court's 5-4 ruling reiterated its belief that flag burning falls within the same class of actions as "virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures," which are "deeply offensive" to the average American, but that the Government may not infringe the right to express an idea just because society has concluded that said idea is offensive.

The convictions leading to the Eichman case were overturned not only because of the expressive nature of the action on which the convictions were based, but also due to the inherent unconstitutionality of the federal Flag Protection Act of 1989.

For the majority opinion, Justice Brennan wrote the following excerpts:

"Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is "related `to the suppression of free expression...

Moreover, the precise language of the Act's prohibitions confirms Congress' interest in the communicative impact of flag destruction.

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. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering. The judgments are Affirmed.

The idea that there is no right in American society that is pure and unlimited is an established concept in American jurisprudence. The rights of the individual are always being weighed against the interests of the society as a whole as represented by the Government. The limits of free speech was the focus of the dissenting opinion of the court in this case."

Dissenting Opinion Excerpt

Justice Stevens, along with the Chief Justice, Justice White and O'Connor wrote:

"...It is equally well settled that certain methods of expression may be prohibited if (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker's freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition."

Justice Stevens concluded in his opinion that by destroying the symbol of freedom, the individual communicates a willingness to destroy those freedoms themselves:

"By burning the embodiment of America's collective commitment to freedom and equality, the flag burner charges that the majority has forsaken that commitment -- that continued respect for the flag is nothing more than hypocrisy. Such a charge may be made even if the flag burner loves the country and zealously pursues the ideals that the country claims to honor."
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