Flag Protection Act of 1989

Andrew C. Spiropoulos

In 1989 the U.S. Supreme Court, in Texas v. Johnson, considered the constitutionality of a Texas statute making it a crime to "deface, damage, or otherwise physically mistreat an American flag in a way that the [person] knows will seriously offend one or more persons likely to observe or discover his action." The Court ruled that the First Amendment to the Constitution prevented the use of the statute to prosecute Gregory Lee Johnson, who had burned a flag to protest President Ronald Reagan's renomination as a presidential candidate. Justice William Brennan, writing for a 5–4 majority, found that the state's declared interest in "preserving the flag as a symbol of nationhood and national unity" was "related 'to the suppression of free expression.'" The state's concern, the Court reasoned, was triggered "only when a person's treatment of the flag communicates some message," meaning that the state prosecuted only those who mistreated the flag so as to express a particular message that others found offensive. The Court concluded: "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."

Many Americans expressed disappointment, and even outrage, at the Court's decision in Johnson, including President George H. W. Bush and overwhelming majorities in both houses of Congress. By July 1, 1989, less than a month after the decision, members of Congress had introduced thirty-nine separate resolutions calling for a constitutional amendment authorizing laws forbidding desecration of the flag. The leaders of both houses of Congress opposed a constitutional amendment but agreed that Congress needed to do something to reverse the effect of the Johnson decision. On October 28, 1989, the Flag Protection Act of 1989 (P.L.101-131, 103 Stat. 777), despite President Bush's refusal to sign the bill, became law. The act states that "whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both." The act "does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled."

The supporters of the act believed that the Court would hold it constitutional because the statute was carefully written to make clear that Congress intended to protect the flag from defacement or other forms of ill treatment no matter the motive or intended message of the accused. In other words, the law punished flag desecration without regard to whether, as with the Texas law in Johnson, anyone found the actions in question offensive. However, in 1990 the Court, in United States v. Eichman, found that the prosecution of an individual for burning a flag in violation of the act was inconsistent with the First Amendment. The Court held that, despite the absence of the explicit restriction of particular messages found in Johnson, the government's declared interest in protecting the "physical integrity" of the flag "rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals." This defense of the nation's symbol and the ideas it represents would be necessary only when a person's treatment of the flag communicates a message at odds with those ideals. In other words, the government's legal protection of the flag is by definition, whether stated explicitly or not, aimed at the suppression of particular messages.

The remaining option for those who wish to provide legal protection against flag desecration is the path abandoned in 1989—an amendment to the Constitution. Amendment proposals, however, were defeated by the Senate in 1989, 1995, and 2000, and by both houses in 1990.

BIBLIOGRAPHY

Dorsen, Norman. "Flag Desecration in Courts, Congress, and Country." Thomas M. Cooley Law Review 17 (2000): 417–442.

Goldstein, Robert Justin. "The Great 1989–1990 Flag Flap: An Historical, Political, and Legal Analysis." University of Miami Law Review 45 (1990): 19–106.

Tiefer, Charles. "The Flag-Burning Controversy of 1989–1990: Congress' Valid Role in Constitutional Dialogue." Harvard Journal on Legislation 29 (1992): 357–398.