Malcolm Rivera
The act of burning the American flag is a contentious issue in the United States. While the Supreme Court has ruled that flag burning is a constitutionally protected form of free speech under the First Amendment, there are many, including former president Donald Trump, who disagree. This has led to questions about whether the Constitution could be amended to prohibit flag burning as a form of protest.
| Characteristics | Values |
|---|---|
| Protected by the First Amendment | Yes |
| Supreme Court ruling | Burning the American flag is a constitutionally protected form of free speech |
| Supreme Court case | Texas v. Johnson |
| Supreme Court case | United States v. Eichman |
| Supreme Court case ruling | A federal flag burning statute is unconstitutional |
| Supreme Court case ruling | Burning the flag is allowable expressive conduct |
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What You'll Learn
- The Supreme Court ruled in 1989 that burning the American flag is a constitutionally protected form of free speech
- The Supreme Court later ruled that a federal flag burning statute is unconstitutional
- The Johnson decision only applied to the Texas flag-desecration law
- In 1990, the Supreme Court reaffirmed Johnson by the same 5-4 majority in United States v. Eichman
- Congress has, as recently as 2006, attempted to amend the Constitution to prohibit flag desecration
The Supreme Court ruled in 1989 that burning the American flag is a constitutionally protected form of free speech
In 1989, the Supreme Court ruled that burning the American flag is a constitutionally protected form of free speech. This ruling came about as a result of Texas v. Johnson, in which the Court decided that flag burning was a form of expression protected under the First Amendment. The following year, in United States v. Eichman, the Court reaffirmed this decision, ruling that a federal flag-burning statute is unconstitutional.
The case of Texas v. Johnson concerned the Texas flag-desecration law, and in response to this decision, Congress passed a national anti-flag burning law called the Flag Protection Act of 1989. However, this law was also struck down by the Supreme Court in United States v. Eichman, with Justice William Brennan citing the Johnson case and writing that "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".
Despite this ruling, the case remains controversial, and there have been several attempts to amend the Constitution to prohibit flag desecration. As recently as 2006, Congress tried to amend the Constitution, but the effort failed by one vote in the Senate. Similarly, between 1995 and 2005, the House of Representatives proposed an amendment when controlled by Republicans, but each time, the amendment fell short in the Senate.
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The Supreme Court later ruled that a federal flag burning statute is unconstitutional
In 1989, the Supreme Court ruled that burning the American flag is a constitutionally protected form of free speech. However, this ruling was contentious, and many people, including then-presidential candidate Donald Trump, disagreed with it.
In the case of Texas v. Johnson, the Supreme Court ruled that burning the American flag is a form of expression protected under the First Amendment. The Court later reaffirmed this ruling in United States v. Eichman, where it was decided that a federal flag burning statute is unconstitutional. In both cases, the majority opinion held that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable.
Justice William Brennan, who wrote the majority opinion in United States v. Eichman, cited the Johnson case, stating that there is a "bedrock principle" underlying the First Amendment that protects free speech. Despite this, the case remains controversial, and there have been multiple attempts to amend the Constitution to prohibit flag desecration. As recently as 2006, Congress tried to amend the Constitution to ban flag burning, but the effort failed by one vote in the Senate.
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The Johnson decision only applied to the Texas flag-desecration law
In 1989, the Supreme Court ruled in Texas v. Johnson that burning the American flag is a form of expression protected under the First Amendment. This decision only applied to the Texas flag-desecration law. In reaction to the Johnson decision, Congress passed a national anti-flag burning law called the Flag Protection Act of 1989. However, in 1990, in United States v. Eichman, the Court struck down that law as unconstitutional as well, in another 5-4 decision. Justice William Brennan, citing the Johnson case, wrote:
> 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.
The case remains controversial to the present day, and Congress has, as recently as 2006, attempted to amend the Constitution to prohibit flag desecration, with the effort failing by one vote in the Senate.
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In 1990, the Supreme Court reaffirmed Johnson by the same 5-4 majority in United States v. Eichman
In 1989, the Supreme Court ruled that burning the American flag is a constitutionally protected form of free speech under the First Amendment. The following year, in United States v. Eichman, the Supreme Court reaffirmed this ruling by the same 5-4 majority. The case was argued together with United States v. Haggerty, and built on the opinion handed down in Texas v. Johnson, which invalidated a Texas state statute banning flag burning.
United States v. Eichman (1990) invalidated a federal law against flag desecration as a violation of free speech under the First Amendment. The case was brought by Shawn Eichman, who was represented by William Kunstler and David Cole. The Supreme Court struck down the Flag Protection Act of 1989, which had been passed by Congress in response to Texas v. Johnson. The Act criminalised the conduct of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a United States flag, except in the case of the disposal of a "worn or soiled" flag.
In United States v. Eichman, Justice William Brennan wrote that "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". This ruling has been reaffirmed by the Supreme Court several times, and as recently as 2006, Congress attempted to amend the Constitution to prohibit flag desecration, but the effort failed by one vote in the Senate.
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Congress has, as recently as 2006, attempted to amend the Constitution to prohibit flag desecration
In 1989, the Supreme Court ruled that burning the American flag is a constitutionally protected form of free speech. However, Congress has repeatedly attempted to amend the Constitution to prohibit flag desecration. As recently as 2006, the Flag Desecration Amendment (often referred to as the Flag-Burning Amendment) was proposed to allow Congress to prohibit and punish the physical "desecration" of the flag. The proposal passed by the two-thirds majority required in the House of Representatives several times, but it failed to attain the same super-majority in the Senate, falling short by one vote.
The amendment has been a contentious issue, provoking a heated debate over protecting a national symbol, preserving free speech, and upholding the liberty said to be represented by that national symbol. While some argue that flag burning is a form of expression protected under the First Amendment, others, including former President Donald Trump, believe it should be prohibited and result in jail time.
The Supreme Court has consistently reaffirmed that flag burning is constitutionally protected free speech, citing that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable. Despite Congress's repeated attempts to amend the Constitution, the Flag Desecration Amendment has failed to gain the necessary support in the Senate, with the most recent effort in 2006 falling just short of the required super-majority.
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Frequently asked questions
Yes, the Supreme Court ruled in 1989 that burning the American flag is a constitutionally protected form of free speech.
Texas v. Johnson. The Court later ruled in United States v. Eichman that a federal flag burning statute is unconstitutional.
Justice William Brennan wrote, "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."
Yes, in 1989 Congress passed a national anti-flag burning law called the Flag Protection Act. However, in 1990 the Supreme Court struck down that law as unconstitutional.
Yes, as recently as 2006, Congress attempted to amend the Constitution to prohibit flag burning, but the effort failed by one vote in the Senate.
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