Notable Items:

Even assuming such a consensus [favoring a prohibition on flag-burning] 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.

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.

Venue: Supreme Court of the United States
Opinion of the Court: United States v. Eichman (1990)

Issue(s) Before the Court:

... whether appellees' prosecution for burning a United States flag in violation of the Flag Protection Act of 1989 is consistent with the First Amendment. Applying our recent decision in Texas v. Johnson (1989) , 491 U. S. 397 (1989), the District Courts held that the Act cannot constitutionally be applied to appellees. We affirm.

Petitioner's Claim(s):

... to reassess this conclusion [Johnson] in light of Congress' recent recognition of a purported "national consensus" [Flag Protection Act of 1989] favoring a prohibition on flag-burning.

Respondent's Claim(s):

... the Flag Protection Act of 1989 is [in]consistent with the First Amendment.

Holding(s) and Disposition:

Held: Appellees' prosecution for burning a flag in violation of the Act is inconsistent with the First Amendment.
Disposition: No. 89-1433, 731 F. Supp. 1123 (DDC 1990); No. 89-1434, 731 F. Supp. 415, affirmed.

Material Facts:

Procedural History:


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

Stevens Dissent (Rehnquist, White, O'Connor)

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