United States v. Eichman

Notable Items:

Court divided between opinion and dissent exactly as it did in Texas v. Johnson (1989) .

... the secret destruction of a flag in one's own basement would not threaten the flag's recognized meaning. Rather, the Government's desire to preserve the flag as a symbol for certain national ideals is implicated "only when a person's treatment of the flag communicates [a] message" to others that is inconsistent with those ideals.

Court became cognizant of private vs public ownership of a particular flag.

Although Congress cast the Flag Protection Act in somewhat broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: it suppresses expression out of concern for its likely communicative impact.

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• After our decision in Texas v. Johnson (1989) , Congress passed the Flag Protection Act of 1989.
• In No. 89-1433, the United States prosecuted certain appellees for violating the Flag Protection Act of 1989, 103 Stat. 777, 18 U.S.C.A. § 700 (Supp.1990), by knowingly setting fire to several United States flags on the steps of the United States Capitol while protesting various aspects of the Government's domestic and foreign policy.
• In No. 89-1434, the United States prosecuted other appellees for violating the Act by knowingly setting fire to a United States flag while protesting the Act's passage.
• In each case, the respective appellees moved to dismiss the flag-burning charge on the ground that the Act, both on its face and as applied, violates the First Amendment.
• A list of the material facts is available above

Procedural History:

• In each case, the respective appellees moved to dismiss the flag-burning charge on the ground that the Act, both on its face and as applied, violates the First Amendment.
• Both the United States District Court for the Western District of Washington, 731 F. Supp. 415 (1990), and the United States District Court for the District of Columbia, 731 F. Supp. 1123 (1990), following Texas v. Johnson (1989) , held the Act unconstitutional as applied to appellees and dismissed the charges.
• The United States appealed both decisions directly to this Court pursuant to 18 U.S.C.A. § 700(d) (Supp.1990).
• We noted probable jurisdiction and consolidated the two cases. 494 U.S. 1063 (1990).

Rationale

Brennan Majority Opinion (Marshall, Blackmun, Scalia, Kennedy)

• Last Term, in Johnson, we held that a Texas statute criminalizing the desecration of venerated objects, including the United States flag, was unconstitutional as applied to an individual who had set such a flag on fire during a political demonstration.
• We reasoned that the State's asserted interest "in preserving the flag as a symbol of nationhood and national unity" was an interest "related `to the suppression of free expression' within the meaning of United States v. O'Brien, 391 U.S. 367 (1968) because the State's concern with protecting the flag's symbolic meaning is implicated "only when a person's treatment of the flag communicates some message." Johnson, supra, at 491 U. S. 410.
• The Government concedes in this case, as it must, that appellees' flag-burning constituted expressive conduct, Brief for United States 28; see Johnson, supra, at 496 U. S. 405-406, but invites us to reconsider our rejection in Johnson of the claim that flag-burning as a mode of expression, like obscenity or "fighting words," does not enjoy the full protection of the First Amendment. Cf. [INCLUDE cases case="Chaplinsky-NewHampshire" %], 315 U. S. 568, 315 U. S. 572 (1942).
• This we decline to do.
• The only remaining question is whether the Flag Protection Act is sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe appellees' expressive conduct.
• Although Congress cast the Flag Protection Act in somewhat broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: it suppresses expression out of concern for its likely communicative impact.
• We decline the Government's invitation to reassess this conclusion in light of Congress' recent recognition of a purported "national consensus" favoring a prohibition on flag-burning. Brief for United States 27.
• A full description of the rationale is available below

Stevens Dissent (Rehnquist, White, O'Connor)

• The Court's opinion ends where proper analysis of the issue should begin.
• But it is equally well settled that certain methods of expression may be prohibited if (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker's freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition. [Where? Which case? Not the O'Brien test.]
• The first question the Court should consider is whether the interest in preserving the value of that symbol is unrelated to suppression of the ideas that flag burners are trying to express.
• The Government's legitimate interest in preserving the symbolic value of the flag is, however, essentially the same regardless of which of many different ideas may have motivated a particular act of flag burning.
• Thus, the Government may -- indeed, it should -- protect the symbolic value of the flag without regard to the specific content of the flag burners' speech. The prosecution in this case does not depend upon the object of the defendants' protest.
• Does the admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas that he or she deems most effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag?
• This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value.
• Indeed, what makes this case particularly difficult for me is what I regard as the damage to the symbol that has already occurred as a result of this Court's decision to place its stamp of approval on the act of flag burning.
• Moreover, the integrity of the symbol has been compromised by those leaders who seem to advocate compulsory worship of the flag even by individuals whom it offends, or who seem to manipulate the symbol of national purpose into a pretext for partisan disputes about meaner ends.
• I remain persuaded that the considerations identified in my opinion in Texas v. Johnson are of controlling importance in this case as well.

Brennan Majority Full Argument (Marshall, Blackmun, Scalia, Kennedy)

• Part I See Material Facts and see Procedural History.
• Part II -- Johnson Applies.
• Last Term, in Johnson, we held that a Texas statute criminalizing the desecration of venerated objects, including the United States flag, was unconstitutional as applied to an individual who had set such a flag on fire during a political demonstration.
• We reasoned that the State's asserted interest "in preserving the flag as a symbol of nationhood and national unity" was an interest "related `to the suppression of free expression' within the meaning of United States v. O'Brien, 391 U.S. 367 (1968) because the State's concern with protecting the flag's symbolic meaning is implicated "only when a person's treatment of the flag communicates some message." Johnson, supra, at 491 U. S. 410.
• We therefore subjected the statute to "`the most exacting scrutiny,'" id. at 491 U. S. 412, quoting Boos v. Barry (1988) , 485 U. S. 312, 485 U. S. 321 (1988), and we concluded that the State's asserted interests could not justify the infringement on the demonstrator's First Amendment rights.
• After our decision in Texas v. Johnson (1989) , Congress passed the Flag Protection Act of 1989.
• The Government concedes in this case, as it must, that appellees' flag-burning constituted expressive conduct, Brief for United States 28; see Johnson, supra, at 496 U. S. 405-406, but invites us to reconsider our rejection in Johnson of the claim that flag-burning as a mode of expression, like obscenity or "fighting words," does not enjoy the full protection of the First Amendment. Cf. [INCLUDE cases case="Chaplinsky-NewHampshire" %], 315 U. S. 568, 315 U. S. 572 (1942).
• This we decline to do.
• The only remaining question is whether the Flag Protection Act is sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe appellees' expressive conduct.
• The Government contends that the Flag Protection Act is constitutional because, unlike the statute addressed in Johnson, the Act does not target expressive conduct on the basis of the content of its message.
• The Government asserts an interest in "protect[ing] the physical integrity of the flag under all circumstances" in order to safeguard the flag's identity "as the unique and unalloyed symbol of the Nation."
• 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,'" 491 U.S. at 491 U. S. 410, and concerned with the content of such expression.
• ... the secret destruction of a flag in one's own basement would not threaten the flag's recognized meaning. Rather, the Government's desire to preserve the flag as a symbol for certain national ideals is implicated "only when a person's treatment of the flag communicates [a] message" to others that is inconsistent with those ideals.
• Although Congress cast the Flag Protection Act in somewhat broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: it suppresses expression out of concern for its likely communicative impact.
• We decline the Government's invitation to reassess this conclusion in light of Congress' recent recognition of a purported "national consensus" favoring a prohibition on flag-burning. Brief for United States 27.
• Even assuming such a consensus exists, any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment.
• Part III -- Concluding Remarks
• "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." Johnson, supra, at 491 U. S. 414.
• The core of the rationale is available above