Burning and other desecration of the United States flag is protected as "expressive speech" under the First Amendment to the Constitution. This hasn't always been the case, however.

A number of cases have dealt with various aspects of flag desecration, including using the flag for commercial advertising, burning the flag, and even wearing a replica of the flag on the seat of one's pants. The following presents the history of these cases in chronological order.

Although all the cases were heard by the US Supreme Court, Texas v. Johnson, 491 US 397 (1989) and United States v. Eichman, 496 US 310 (1990) are the cases most often cited.

Brief History of Flag Desecration Challenges

Halter v. Nebraska, 205 US 34 (1907)

In 1903, the state of Nebraska passed a law, "An Act to Prevent and Punish the Desecration of the Flag of the United States," that prohibited, among other things, using images of the flag in any form of commercial advertising. Nebraska made a partial exception to the Act, and allowed newspapers, magazines and books to display images of the flag, as long as the images weren't intended as advertisements.

Two men, Nicholas Halter and Harry Haywood, were arrested for selling bottles of beer on which a picture of the American flag was printed. They plead not guilty on the grounds that the Act violated their 14th Amendment rights under the Equal Protection Clause because the law made an exception for certain commercial enterprises (newspapers, magazines), but not others.

The Supreme Court found in favor of the State, and declared states had the right to pass laws regarding the commercial use of the flag, even in the absence of similar federal laws.

Federal Flag Desecration Law (1968)

In 1968, Congress passed the Federal Flag Desecration Law in response to a Vietnam War protest in Central Park (NYC), where protesters burned the American flag to express their anger with the United States government over its involvement in the war. The federal law banned any display of contempt against "any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it."

Street v. New York, 394 US 576 (1969)

Sydney Street, upon hearing about the assassination of civil rights leader James Meredith, took a 48-star flag from his house and burned it at a local intersection. He was arrested and charged with violating a New York law making it a crime to publicly mutilate any American flag, "either by words or by act."

Street was convicted and given a suspended sentence, but appealed on the grounds that the law was overbroad, vague and imprecise, and that burning the flag was a form of political expression protected by the First Amendment.

The Supreme Court held that the State could not suppress speech, no matter how shocking or offensive they found it. The application of the state law to "words that publicly defy or cast contempt" on the United States flag was unconstitutional. Because the charges against Street didn't specify whether he was convicted on the basis of speech or action, the Court chose to remain silent on the "damaging" issue.

Street's conviction was overturned.

Smith v. Goguen, 415 US 566 (1974)

Goguen had sewn a small cloth version of the American flag to the seatof his pants and wore it in public. Although he was not engaged in any form of protest or criminal activity, the police swore out a complaint against him for "misuse" of the flag, under a Massachusetts statute that prohibited mutilation on, trampling, defacing or other contemptuous treatment of the flag.

The penalty was fixed at a fine of $10-100 and/or imprisonment of up to one year. Goguen was convicted and sentenced to six months in prison.

The Massachusetts Supreme Court upheld the conviction on appeal, but both the federal District Court and the 1st Circuit Court reversed the state ruling.

In a 6-3 vote, the Supreme Court held that the law was unconstitutional because it was too vague, and didn't make clear what conduct would be considered illegal. Because the state prosecuted on a selective basis, they demonstrated there was never any desire to "make criminal every informal use of the flag."

The Court further held that neither the United States nor the State government had the right to force individuals to express favorable attitudes toward the flag.

Texas v. Johnson, 491 US 397 (1989)

In 1984, Gregory Johnson participated in a political rally during the Republican National Convention, which was held in Dallas that year. He and other protesters distributed literature and made speeches denouncing President Reagan's "War Chest" policies. The crowd marched through the streets and staged "die-ins" on the grounds of several corporations known to support the Reagan administration.

The tour concluded in front of Dallas City Hall, where Johnson unfurled an American flag, doused it with kerosene and set it on fire while the crowd chanted, "America, the red, white, and blue, we spit on you."

Johnson was arrested and convicted under a Texas law that prohibited intentionally and knowingly desecrating a state or national flag, fined $2,000, and sentenced to one year in jail.

Johnson appealed his case to the Court of Criminal Appeals of Texas, which reversed the lower court ruling on the grounds that Johnson could not be punished for expressive conduct protected under the First Amendment. The Court concluded that the State could not sanction flag burning in order to preserve the flag as a symbol of national unity.

The State of Texas petitioned the US Supreme Court for a writ of certiorari, with the hope of preserving the desecration statute.

In a 5-4 vote, the Court affirmed the Court of Criminal Appeals' verdict. Justice William Brennan delivered the majority opinion.

The Texas law stated desecration is illegal if "the actor knows it will seriously offend one or more persons," which the Court held was a deliberate attempt at suppressing free speech, and therefore was unconstitutional. Johnson had the right to invoke First Amendment protection because the burning occurred in the context of a political protest.

Flag Protection Act of 1989

In response to the Supreme Court ruling, Congress amended its earlier Federal Flag Desecration Law to make the language more "content neutral" to conform to the ruling in Johnson. Congress made all instances of flag burning (except destroying old or soiled flags) prohibited without referring to contempt or the observation of third-party individuals.

United States v. Eichman, 496 US 310 (1990)

After Congress passed the Flag Protection Act of 1989, thousands of people burned flags in protest. Two of the people arrested under the Act, Shawn Eichman and Mark Haggerty, challenged their arrest and the constitutionality of the new law. Their cases were consolidated and granted certiorari by the Supreme Court.

The Court again ruled 5-4 in the defendants' favor, on the grounds that the government was violating the First Amendment and attempting to inhibit political expression against the government. The Court stated that the flag was merely a symbol, an object that represents something else, and that desecration does not harm the underlying principles or institution. "Destroying a symbol sends a message about a person's attitudes towards, interpretation of, or beliefs about that symbol and what it represents." The Court accused Congress of passing the legislation because desecration of the flag offends others, not because they wanted to "protect a piece of cloth."

Because the Court made clear its opinion that flag laws represent a deliberate attempt to restrict constitutionally protected speech, Congress and the States did not pass further legislation against flag burning.

Congress has, however, made at least seven attempts to overrule the Supreme Court by passing a Constitutional Amendment making an exception to the First Amendment that would allow the federal government to ban flag burning. Although the House Resolutions have passed several times, the bill has consistently failed in the Senate.

"Government may not prohibit the expression of an idea simply because society finds the idea itself offensive."

For further information on Texas v. Johnson, (1989) see Related Links, below.

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