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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

E, Eichman, United States, v.,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 25 May 2020

Eichman, United States, v.,

496 U.S. 310 (1990), argued 14 May 1990, decided 11 June 1990 by vote of 5 to 4; Brennan for the Court, Rehnquist, White, Stevens, and O’Connor in dissent. United States v. Eichman involved two consolidated appeals by the United States in cases in which appellees had been prosecuted for publicly burning American flags in violation of the 1989 Flag Protection Act. (See flag burning.) This law prohibited the knowing mutilation, defacement, physical defilement, burning of, or trampling on any American flag. Two U.S. district courts ruled the act unconstitutional, based on the Supreme Court’s ruling in *Texas v. Johnson (1989). Johnson had declared unconstitutional a Texas statute that prohibited knowing desecration of venerated objects in a manner that “the actor knows will seriously offend one or more persons” (p. 400). Texas had applied the statute to a person who had burned an American flag during a protest at the Republican national convention in Dallas in 1984. Indeed, Congress passed the Flag Protection Act in order to give the Supreme Court an opportunity to reconsider its Johnson ruling.

In Johnson, Justice William *Brennan found Texas’s statute invalid because Texas’s interest in preserving the flag as a symbol of nationhood was integrally related to the state’s disagreement with the message conveyed. The law became operative “only when a person’s treatment of the flag communicates some message” (pp. 12–13). This basis for *state action violated the central *First Amendment tenet that political speech may not be abridged simply because of its content, however controversial. Texas’s law went beyond a mere *“time, place, and manner” regulation, which is directed at only the “incidental effects” of expressive conduct, such as excessive noise or unsafe conduct, rather than the message, per se. Accordingly, the Supreme Court applied the strictest standard of review to the law, rather than the more deferential standard that governs restrictions relating only to incidental effects. (U.S. v. *O’Brien, 1968).

In Eichman, however, the government contended that the Flag Protection Act was not directed at offensive expressive conduct, but rather at all forms of flag mistreatment. The law did not single out “offensive” forms of mistreatment, as had Texas’s law. Thus, the United States maintained that the act should not be subject to the most exacting constitutional scrutiny.

The Supreme Court disagreed: “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.’” Justice Brennan intimated that a majority of the Court would construe virtually any law directed at forms of flag desecration as constitutionally suspect, for such laws are inescapably linked to government’s disapproval of the message conveyed.

In dissent, Justice John Paul *Stevens maintained that the Flag Protection Act and similar laws are consistent with the First Amendment. First, they leave protestors with ample alternative means of conveying their ideas, so the impact on free speech is minimal. Second, they are more neutral concerning the specific content of speech than the majority alleged. “The flag uniquely symbolizes the ideas of liberty, equality, and tolerance … the message thereby transmitted [by the flag] does not take a stand upon our disagreements, except to say that those disagreements are best regarded as competing interpretations of shared ideals.”

Eichman reaffirmed the Court’s commitment to protecting extremely provocative expression.

Donald A. Downs