Order Code 95-709 A
CRS Report for Congress
Received through the CRS Web
Flag Protection: A Brief History and Summary of
Recent Supreme Court Decisions and Proposed
Constitutional Amendment
Updated July 18, 2001
John Luckey
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Flag Protection: A Brief History and Summary of
Recent Supreme Court Decisions and Proposed
Constitutional Amendment
Summary
Many Members of Congress see continued tension between “free speech”
decisions of the Supreme Court, which protect flag desecration as expressive conduct,
and the symbolic importance of the United States flag. Consequently, every Congress
that has convened since those decisions were issued has considered proposals that
would permit punishment of those who engage in flag desecration. The 106th
Congress narrowly failed to propose a constitutional amendment to allow punishment
of flag desecration. Measures proposing similar amendments have been introduced
in the 107th Congress. On July 17, 2001, one such proposal, H.J.Res. 36, was passed
by the House.
This report is divided into two parts. The first gives a brief history of the flag
protection issue, from the enactment of the Flag Protection Act in 1968 through
current consideration of a constitutional amendment. The second part briefly
summarizes the two decisions of the United States Supreme Court, Texas v. Johnson
and United States v. Eichman, that struck down the state and federal flag protection
statutes as applied in the context punishing expressive conduct.
In 1968, Congress reacted to the numerous public flag burnings in protest of the
Vietnam conflict by passing the first federal flag protection act of general applicability.
For the next 20 years, the lower courts upheld the constitutionality of this statute and
the Supreme Court declined to review these decisions. However, in Texas v.
Johnson, the majority of the Court held that a conviction for flag desecration under
a Texas statute was inconsistent with the First Amendment and affirmed a decision
of the Texas Court of Criminal Appeals that barred punishment for burning the flag
as part of a public demonstration.
In response to Johnson, Congress passed a federal Flag Protection Act. But, in
reviewing this Act in United States v. Eichman, the Supreme Court expressly declined
the invitation to reconsider Johnson and its rejection of the contention that flag-
burning, like obscenity or “fighting words,” does not enjoy the full protection of the
First Amendment as a mode of expression. The only question not addressed in
Johnson, and therefore the only question the majority felt necessary to address, was
“whether the Flag Protection Act is sufficiently distinct from the Texas statute that it
may constitutionally be applied to proscribe appellees’ expressive conduct.” The
majority of the Court held that it was not.
Congress, recognizing that Johnson and Eichman had left little hope of an anti-
desecration statute being upheld, has considered in each Congress subsequent to these
decisions a constitutional amendment to empower Congress to protect the physical
integrity of the flag. In the 106th Congress, a resolution to propose an anti-
desecration amendment passed the House by a vote of 305 to 124, but failed, by a
vote of 63-37, to receive the necessary two-thirds vote in the Senate. At least four
measures similar to the failed resolution are pending before the 107th Congress. One,
H.J.Res. 36, passed the House by a vote of 298 to 125 on July 17, 2001.

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Contents
History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Texas v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States v. Eichman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Flag Protection: A Brief History and
Summary of Recent Supreme Court
Decisions and Proposed Constitutional
Amendment
Many Members of Congress see continued tension between “free speech”
decisions of the Supreme Court, which protect flag desecration as expressive conduct,
and the symbolic significance of the United States flag. Consequently, every Congress
that has convened since those decisions were issued has considered possible measures
to permit the punishment of those who engage in flag desecration. The 106th
Congress narrowly failed to propose a constitutional amendment to allow punishment
of flag desecration. Measures to propose similar amendments have already been
introduced in the 107th Congress. One of these measures, H.J.Res. 36, was passed the
House on July 17, 2001, by a vote of 298 to 125.
This report is divided into two parts. The first gives a brief history of the flag
protection issue, from the enactment of the Flag Protection Act in 1968 through
current consideration of a constitutional amendment. The second part briefly
summarizes the two decisions of the United States Supreme Court, Texas v. Johnson
and United States v. Eichman, that struck down the state and federal flag protection
statutes as applied in the context punishing expressive conduct.1
History
In 1968, in the midst of the Vietnam conflict, Congress enacted the first Federal
Flag Protection Act of general applicability.2 The law was occasioned by the
numerous public flag burnings in protest of the war.3 For the next 20 years, the lower
courts upheld the constitutionality of the federal statute and the Supreme Court
declined to review these decisions.4
1For a more detailed discussion of these cases, see, John Luckey, Texas v. Johnson: Flag
Desecration and the First Amendment, CRS Report 89-394 (June 29, 1989) and John
Luckey, United States v. Eichman: the Flag Protection Act of 1989 Held Unconstitutional,
CRS Report 90-301 (June 19, 1990).
2P.L. 90-381, 82 Stat. 291 (1968), codified at 18 U.S.C. § 700. Prior to this Act there was
an act which prohibited desecration of the flag in the District of Columbia.
3See, S.Rept. 90-1287, 90th Cong., 2nd Sess. 2 (1968).
4See, e.g. Joyce v. United States, 454 F.2d 971 (D.C. Cir. 1971), cert. den. 405 U.S. 969.;
United States v. Crosson, 462 F.2d 96 (9th Cir. 1972), cert. den. 409 U.S. 1064; and Kime
v. United States, 673 F.2nd 1318 (4th Cir. 1982), cert. den. 459 U.S. 949.

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CRS-2
However, during the 20-year period between enactment of the Flag Protection
Act and its Johnson decision, the Supreme Court did visit the flag issue three times.
Each time the Court found a way to rule in favor of the protestor and overturn a state
conviction on very narrow grounds, avoiding a definitive ruling on the
constitutionality of convictions for politically inspired destruction or alteration of the
American flag.5 In Street v. New York,6 the Court overturned a state conviction for
flag-burning, holding that the flag-burner was prosecuted for his words rather than his
acts. In 1974, the Court overturned a prosecution by finding that the state statute was
vague.7 In Spence v. Washington,8 the Court held that the taping of a peace symbol
to a flag was expressive conduct and thus protected by the First Amendment. In both
of these later cases the Court expressly referred to the federal statute in a positive
manner.9
It was against this background, that the Supreme Court took the Johnson case.
In 1984, during the Republican National Convention in Dallas, Texas, Johnson had
participated in a demonstration protesting the policies of the Reagan administration.
In front of the city hall, Johnson unfurled an American flag, which another member
of the demonstration had taken from a flag pole and had given to him, doused it with
kerosene, and set it on fire. He was charged with the desecration of a venerated
object in violation of a Texas statute.10 Johnson was tried, convicted, and sentenced
to one year in prison and fined $2,000. The conviction was upheld by the Court of
Appeals of the Fifth District of Texas at Dallas.11 The Texas Court of Criminal
Appeals reversed.12 In a 5 to 4 decision, the U.S. Supreme Court affirmed this
reversal on June 21, 1989,13 thus, in effect, holding that the flag protection statutes
of 47 states and the federal statute could not be applied to a flag burning that was part
of a public demonstration.14
5See, John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and
Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482 (1975) and Charles Tiefer,
The Flag-Burning Controversy of 1989-1990: Congress’ Valid Role in Constitutional
Dialogue, 29 Harv. J. on Leg. 357 (1992).
6394 U.S. 576 (1969).
7Smith v. Goguen, 415 U.S. 566 (1974).
8418 U.S. 405 (1975).
9Goguen, at 582 and Spence at 415.
10Tex. Penal Code Ann. § 42.09 (1989).
11706 S.W.2d 120 (1986).
12755 S.W.2d 92 (1988).
13Texas v. Johnson, 491 U.S. 397 (1989).
14Alaska and Wyoming do not have this type of statute. For a list of the citations to the state
flag desecration statutes in effect at the time, see, Texas v. Johnson, at 428, n.1 (Rehnquist,
C.J., dissenting) (1989). See, also, Vastine Davis Platte, Flag Desecration and Flag Misuse
Laws in the United States, CRS Report 95-182 (March 29, 1995).

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In response to this decision, Congress enacted the Flag Protection Act of 1989.15
The Act changed the focus of the protection granted the flag from protecting it
against desecration, which the Court had ruled unconstitutional, to protecting its
physical integrity. The primary purpose of amending the federal desecration statute
was to remove any language which the courts might find made the statute one that
was aimed at suppressing a certain type of expression. If the statute was neutral as
to expression – for instance, if it proscribed all burning of flags – then, its proponents
argued, the statute’s prohibitions might be judged under the constitutional test
enunciated by the Court in United States v. O’Brien. Under the O’Brien test, which
is less strict than First Amendment standards applied in expression cases, the
government need only show that the statute furthers an important or substantial
governmental interest, and that the restriction on First Amendment freedoms is no
greater than is essential to the furtherance of that interest.16 All of the opinions in
Johnson had recognized a governmental interest in protecting the physical integrity
of the flag to some degree. Therefore, it was at least arguable that such a neutral
statute would meet the second part of the test.
The new statute made criminal intentionally mutilating, defacing, physically
defiling, burning, maintaining on the floor or ground, or trampling upon the flag of the
United States. Exemption was given for conduct consisting of disposal of a worn or
soiled flag. The term “flag of the United States” was defined to mean any flag of the
United States, or any part thereof, made of any substance, of any size, in a form that
is commonly displayed. Provision was made for expedited Supreme Court review of
the constitutionality of the Act.
The Flag Protection Act of 1989 became effective on October 28, 1989. On that
date protesters in Seattle Washington and Washington D.C. were arrested for
violation of the new Act. These cases were dismissed upon findings that the Act was
unconstitutional as applied to their burning a United States flag in a protest context.17
The D.C. and Seattle cases were appealed to the Supreme Court under the Act’s
expedited review provision.18 On June 11, 1990, the Court announced its ruling.19
In another 5 to 4 decision,20 the Court held that the Flag Protection Act of 1989 could
15P.L. 101-131 (H.R. 2978).
16See, United States v. O’Brien, 391 U.S. 367, 377 (1968).
17United States v. Haggerty, 731 F.Supp. 415 (W.D. Wa. 1990) and United States v.
Eichman, 731 F.Supp. 1123 (D.D.C. 1990)..
18United States v. Eichman, 89-1433, and United States v. Haggerty, 89-1434.
19United States v. Eichman, 496 U.S. 310 (1990).
20It should be noted that both Johnson and Eichman were 5 to 4 decisions with the division
of the Court identical. Justice Brennan delivered the opinion of the Court, in which Justices
Marshall, Blackmun, Scalia, and Kennedy, joined. The dissenting justices were Chief Justice
Rehnquist, Justices Stevens, White, and O’Connor. Three of the majority justices are no
longer on the Court, Justice Brennan being replaced by Justice Souter, Justice Marshall being
replaced by Justice Thomas, and Justice Blackmun being replaced by Justice Ginsburg. One
of the minority justices has been replaced, Justice White being replaced by Justice Breyer.
With this large a changeover in the Court, one cannot predict the outcome of a similar case
(continued...)

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not be constitutionally applied to a burning of the flag in the context of a public
protest.
In the summer of 1990, both Houses of Congress considered and failed to pass
by the required two-thirds vote21 an amendment to the Constitution which would have
empowered Congress to enact legislation to protect the physical integrity of the flag.
In each of the104th, 105th and 106th Congresses, the House passed proposed
Constitutional Amendments which would have authorized Congress to enact
legislation to protect the flag from physical desecration.22 In the 104th Congress, the
Senate considered a “flag” Amendment, but came three votes short of passing it.23
In the 105th Congress, the Senate Judiciary Committee reported (without written
report) an Amendment to authorize protection of the flag, S.J.Res. 40. The Senate
did not bring this resolution to the floor for consideration. In the 106th Congress,
S.J.Res. 14 failed, by a vote of 63-37, to receive the necessary two-thirds vote in the
Senate.24
In the 107th Congress, the proposals with the most cosponsors are S. J.Res. 7,
introduced by Sen. Hatch on March 13, 2001 (51 cosponsors), and H.J.Res. 36,
introduced by Rep. Cunningham on March 13, 2001 (258 cosponsors). Like the
majority of their predecessors, these proposals would add the following to the
Constitution:
The Congress shall have power to prohibit the physical desecration of the flag of
the United States.
Separate proposals by Rep. Emerson, H.J.Res. 11 and H.R. 79, would allow both
Congress and the States to prohibit flag desecration. Another proposal, H.Con.Res.
105, is a non-binding expression of the sense of Congress that Congress be
empowered to prohibit flag desecration.
All of the foregoing proposals were referred to the Judiciary Committee of the
House in which they were introduced. On July 17, 2001, the House passed H.J.Res.
20(...continued)
with any great certainty.
21The vote in the House was 254 to 177 (34 votes short of two thirds). The vote in the Senate
was 58 to 42 (9 votes short of two thirds).
22In the 104th Congress, the House, by a vote of 312 to 120 passed H.J.Res. 79 CONG. REC.
H6446 (daily ed. June 28, 1995) (record vote no. 431). In the 105th Congress, the House, by
a vote of 310 to 114 passed H.J.Res. 54, 143 CONG. REC. H3755-56 (daily ed. June 12,
1997) (record vote no. 202). In the 106th Congress, the House, by a vote of 305 to 124 passed
H.J.Res. 33, 145 CONG. REC. H4844 (daily ed. June 24, 1999) (record vote no. 252).
23On December 12, 1995, the Senate, by a vote of 63 to 36, failed to pass S.J.Res. 31, 141
CONG. REC. S18394 (daily ed. December 12, 1995)(record vote no. 600)(with 99 Senators
voting, 66 votes were required for passage).
24146 CONG. REC. S1874 (daily ed. March 29, 2000)(record vote no. 48)

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36 by a vote of 298 to 125.25 Proponents of the measure emphasized the singular
symbolic significance of the flag; opponents emphasized the importance of allowing
political expression most hold objectionable.
Should Congress approve a proposed flag protection amendment by the required
two-thirds majority of each House, the amendment would only become effective upon
ratification by the legislatures of three-fourths of the states within seven years after
submittal for ratification.
Texas v. Johnson
In Texas v. Johnson, the majority of the Court held that Johnson’s conviction for
flag desecration, under a Texas statute, was inconsistent with the First Amendment
and affirmed the decision of the Texas Court of Criminal Appeals that held that
Johnson could not be punished for burning the flag as part of a public demonstration.
The opinion outlined the questions to be addressed in a case where First
Amendment protection is sought for conduct rather than pure speech. First, the Court
must determine if the conduct in question is expressive conduct. If the answer is yes,
then the First Amendment may be invoked, and the second question must be
answered. The second question is whether the state regulation of the conduct is
related to the suppression of expression. The answer to this question determines the
standard which will be utilized in judging the appropriateness of the state regulation.
The test of whether conduct is deemed expressive conduct sufficient to bring the
First Amendment into play is whether an intent to convey a particularized message
was present, and whether the likelihood was great that the message would be
understood by those who viewed it.26 The opinion emphasizes the communicative
nature of flags as previously recognized by the Court,27 but states that not all action
taken with respect to the flag is automatically expressive. The context in which the
conduct occurred must be examined.28 The majority found that Johnson’s conduct
met this test. The burning of the flag was the culmination of a political demonstration.
It was intentionally expressive, and its meaning was overwhelmingly apparent. In
these circumstances the burning of the flag was conduct “sufficiently imbued with
elements of communication” to implicate the First Amendment.29
The finding that burning the flag in this circumstance was expressive conduct
required the Court next to look at the statute involved to see if it was directly aimed
25147 CONG. REC. H4068 (daily ed. July 17, 2001)(record vote no. 232)
26Texas v. Johnson, 491 U.S. 397, at 405 (1989), citing Spence v. Washington, 418 U.S. 405,
410-411 (1974).
27See, West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (pledge of allegiance),
Spence v. Washington, 418 U.S. 405 (1974) (attaching a peace sign to the flag), Stromberg
v. California, 283 U.S. 359 (1931) (displaying a red flag), and Smith v. Goguen, 415 U.S.
566 (1974) (wearing a flag on the seat of one’s pants).
28Johnson, at 406.
29Id.

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at suppressing expression or if the governmental interest to be protected by the statute
was unrelated to the suppression of free expression. If the statute were of the latter
type, the government would need only show that it furthers an important or
substantial governmental interest, and that the restriction on First Amendment
freedoms is no greater than is essential to the furtherance of that interest.30 If the
statute was aimed at suppression of expression, then it could be upheld only if it
passed the most exacting scrutiny.31
Texas offered two state interests which it sought to protect with this statute:
prevention of breaches of the peace; and preservation of the flag as a symbol of
nationhood and national unity. The majority rejected the first of these interests as not
being implicated in the facts of this case. No disturbance of the peace actually
occurred or was threatened. The opinion also points out that Texas has a statute
specifically prohibiting breaches of the peace,32 which tends to confirm that flag
desecration need not be punished to keep the peace.33
The second governmental interest, that of preserving the flag as a symbol of
national unity, was found by the majority to be directly related to expression in the
context of activity.34 The Texas law did not cover all burning of flags. Rather it was
designed to protect it only against abuse that would be offensive to others. Whether
Johnson’s treatment of the flag was proscribed by the statute could only be
determined by the content of his expression. Therefore, exacting scrutiny must be
applied to the statute.35
The majority held that the Texas statute could not withstand this level of
scrutiny. There is no separate constitutional category for the American flag. The
government may not prohibit expression of an idea merely because society finds the
idea offensive, even when the flag is involved. Nor may a state limit the use of
designated symbols to communicate only certain messages.36
United States v. Eichman
The Court in reviewing the Flag Protection Act of 1989 in United States v.
Eichman expressly declined the invitation to reconsider Johnson and its rejection of
the contention that flag-burning as a mode of expression, like obscenity or “fighting
words,” does not enjoy the full protection of the First Amendment.37 The only
30See, United States v. O’Brien, 391 U.S. 367, 377 (1968).
31Johnson, at 412, citing Boos v. Barry, 485 U.S. 312, 321 (1988).
32Tex. Penal Code Ann. § 42.01 (1989).
33Johnson, at 410.
34Id., citing Spence at 414 n. 8.
35Id. at 412.
36Id. at 415-416.
37United States v. Eichman, 496 U.S. 310, at 315 (1990). The majority also declined to
(continued...)

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question not addressed in Johnson, and therefore the only question the majority felt
necessary to address, was “whether the Flag Protection Act is sufficiently distinct
from the Texas statute that it may constitutionally be applied to proscribe appellees’
expressive conduct.”38
The government argued that the governmental interest served by the Act was
protection of the physical integrity of the flag. This interest, it was asserted, was not
related to the suppression of expression and the Act contained no explicit content-
based limitations on the scope of the prohibited conduct. Therefore the government
should only need to show that the statute furthers an important or substantial
governmental interest, and that the restriction on First Amendment freedoms is no
greater than is essential to the furtherance of that interest.39
The majority, while accepting that the Act contained no explicit content-based
limitations, rejected the claim that the governmental interest40 was unrelated to the
suppression of expression. The Court stated:
The Government’s interest in protecting the “physical integrity” of a privately
owned flag rests upon a perceived need to preserve the flag’s status as a symbol
of our Nation and certain national ideals. But the mere destruction or
disfigurement of a particular physical manifestation of the symbol, without more,
does not diminish or otherwise affect the symbol itself in any way. For example,
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.41
In essence the Court said that the interest protected by the Act was the same interest
which had been put forth to support the Texas statute and rejected in Johnson.
37(...continued)
reassess Johnson in light of Congress’ recognition of a “national consensus” favoring a
prohibition on flag-burning, stating:
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. Id. at 318.
38Id.
39See, United States v. O’Brien, 391 U.S. 367, 377 (1968).
40The opinion notes that there are at least two other interests the government has in protecting
the flag, but these interests are not involved in the context of flag-burning of a privately owned
flag. The decision does not affect the extent the government’s interest in protecting publicly
owned flags might justify special measures on their behalf. Eichman, at 316, nt. 5. The
government, also, has a legitimate interest in preserving the flag’s function as an “incident of
sovereignty,” but the facts of this case did not interfere or threaten that interest. Id. at 316,
nt. 6.
41Eichman, at 315-316.

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The opinion went on to analyze the language of the Act itself. Again, while there
was no explicit limitation found in this language, the majority found that each of the
specified terms, with the possible exception of “burns,” unmistakably connoted
disrespectful treatment of the flag and thus argues against the expression neutrality
of the Act.42 Therefore, although the Act was “somewhat broader” than the Texas
statute, it still suffered from the same fundamental flaw, namely it suppressed
expression out of concern for its likely communicative impact.43 This being the case,
the Majority found that the O’Brien test was inapplicable and the Act must be subject
to “the most exacting scrutiny.” As in Johnson, the statute in question could not
withstand this level of scrutiny.
42Id. at 317.
43Id. at 318.

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