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United States v. Eichman

Supreme Court of the United States · 1990 · Constitutional Law

Constitutional LawFirst AmendmentSymbolic SpeechFlag DesecrationFirst Amendmentexpressive conductflag burningcontent based

Facts

In one case, appellees knowingly set fire to several United States flags on the steps of the United States Capitol while protesting aspects of the Government's domestic and foreign policy. In the other, appellees knowingly set fire to a United States flag in Seattle while protesting the Flag Protection Act's passage. In both cases, the Government prosecuted under the Flag Protection Act of 1989, which criminalized knowingly mutilating, defacing, physically defiling, burning, maintaining on the floor or ground, or trampling upon any United States flag, subject to an exception for disposal of worn or soiled flags. The Government conceded that appellees' flag burning was expressive conduct.

Issue

Whether the Flag Protection Act of 1989 may constitutionally be applied to punish appellees for burning United States flags in political protest. More specifically, the question was whether the Act was sufficiently different from the statute invalidated in Texas v. Johnson to avoid First Amendment invalidity.

Rule

When the government's asserted interest in regulating expressive conduct is related to the suppression of free expression or depends on the communicative impact of the conduct, O'Brien does not apply and the law must be subjected to the most exacting scrutiny. A law suppressing flag burning to preserve the flag's symbolic status is content based because that interest is implicated only when the treatment of the flag communicates a message inconsistent with the ideals the flag symbolizes.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

During a protest in Denver, Maya Ortiz sets fire to her own United States flag while criticizing federal immigration policy. A federal statute makes it a crime to knowingly burn, trample, or physically defile any privately owned United States flag, but exempts ceremonial disposal of worn flags.

If Maya challenges the statute as applied to her, which is the strongest argument that the law is unconstitutional?

Explanation. Where the government's asserted interest in regulating expressive conduct is related to suppressing expression, the O'Brien framework does not apply. A ban on burning or defiling a privately owned flag, especially with an exception for respectful disposal, reflects an interest in preserving the flag's symbolic value and thus depends on the message conveyed by the treatment of the flag. Under the majority opinion, that makes the law content based and subject to the most exacting scrutiny, which it cannot survive as applied to political protest.