United States v. Eichman

PETITIONER: United States
LOCATION: Congress

DOCKET NO.: 89-1433
DECIDED BY: Rehnquist Court (1988-1990)

CITATION: 496 US 310 (1990)
ARGUED: May 14, 1990
DECIDED: Jun 11, 1990

Kenneth W. Starr - Argued the cause for the United States
William M. Kunstler - Argued the cause for the appellees

Facts of the case

In 1989, Congress passed the Flag Protection Act which made it a crime to destroy an American flag or any likeness of an American flag which may be "commonly displayed." The law did, however, allow proper disposal of a worn or soiled flag. Several prosecutions resulted from the Act. Eichman set a flag ablaze on the steps of the U.S. Capitol while protesting the government's domestic and foreign policy. Another prosecution (United States v. Haggerty) resulted from a flag-burning in Seattle protesting the passage of the Flag Protection Act.Both cases (Eichman's and Haggerty's) were argued together.


Did the Act violate freedom of expression protected by the First Amendment?

Media for United States v. Eichman

Audio Transcription for Oral Argument - May 14, 1990 in United States v. Eichman

William H. Rehnquist:

We'll hear argument now in No. 89-1433, United States against Shawn D. Eichman, et al., and 89-1434, United States against Mark John Haggerty, et al.--

General Starr.

Kenneth W. Starr:

Mr. Chief Justice, and may it please the Court:

These two cases bring before the Court a single question: whether the First Amendment prohibits the United States from prosecuting individuals for knowingly burning a flag of the United States.

Two district courts, the United States District Court for the District of Columbia and the United States District Court for the Western District of Washington, held that the Flag Protection Act of 1989, passed by Congress in response to this Court's decision in Texas against Johnson, was unconstitutional as applied to the conduct of the individuals here.

In both cases it is undisputed that each of the appellees knowingly burned a flag of the United States and thus violated the statute.

In our view, there are four reasons that argue powerfully in support of the constitutionality of this statute.

First, Congress acted carefully and with great respect for this Court's decisions concerning flag protection statutes.

It took seriously the Court's expressed statement in Texas against Johnson that the inquiry there was bounded not only by the facts of the case, but by the state's statute there in question.

In relying on this Court's various writings and decisions Congress amended the Federal statute in response to Texas against Johnson to eliminate the prior, clearly content-laden language of Section 700, the language, "cast contempt upon" and "publicly".

Second, Congress acted very narrowly.

It focused, as this Court said in Smith v. Goguen, that it could lawfully do, on certain specific areas of conduct where legislative latitude is greater.

And Congress carved out a narrowly crafted set of protections as to certain conduct, while permitting robust and uninhibited speech to continue unabated.

There was no prohibition on Congress' part against the publication or the dissemination of ideas.

Third and relatedly, as I will seek to show in the context of the facts of these two cases, flag burning leaves a major message gap, a gap that needs to be filled in with words, either written or spoken, as happened in both the District of Columbia and Seattle demonstrations.

It is, in our judgment, the equivalent of shouting or screaming or using a loudspeaker at full blast to arrest the audience's attention.

This is not in our judgment an especially weighty value on the First Amendment scales.

Fourth, on the other side of those scales are interests of the highest order in the national community.

Those interests are intangible, to be sure, just as the concept of human dignity is intangible.

But those interests are no less real, rooted as they are in the Nation's history and experience, and especially our history as a community of people in this century in which so many of our co-members of the national community have been asked to sacrifice so much.

To focus now on the facts and the nature of flag burning.

In evaluating the expressive content, the content of this conduct, it is useful to examine precisely what happened here and what it is that flag burning conveys.

This can be seen by way of example in the statement of Shawn Eichman, one of the District of Columbia appellees.

Ms. Eichman's concerns that animated her conduct were quite varied in nature.

They ranged from civil rights concerns to concerns about the environment, and concerns about certain aspects of U.S. foreign policy.

The same is true with respect to the Seattle demonstration, a videotape of which is in the record.

The concerns that were animating the Seattle appellees ranged from a then ongoing labor strike at Boeing Aircraft facilities in the area to the treatment afforded Hispanic Americans and national policies concerning the homeless.

Now a passerby happening on these acts of flag burning would, in our judgment, likely and reasonably conclude that the actor is in a state of profound disagreement.

But it does not tell us with what.

That message, the what, comes, if at all, from the speech that is incident or tied to the conduct as occurred in Street against New York.