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 September 1, 2004
John Luckey
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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
under the First Amendment, 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 send a constitutional amendment
to allow punishment of flag desecration to the States. In the 107th Congress, one such
proposal was passed by the House. In the 108th Congress, the House and Senate
Judiciary Committees have favorably reported a proposed constitutional amendment
to allow punishment of flag desecration. The House has passed H.J.Res. 4.
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. H.J.Res. 4 to this purpose has been favorably reported
in the 108th Congress by the House Judiciary Committee and passed by the House on
June 3, 2003. The Senate Committee on the Judiciary reported a companion
proposal, S.J.Res. 4, on July 22, 2004.

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

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
under the First Amendment, 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. In the 108th Congress, the House Judiciary Committee has favorably
reported H.J.Res. 4, a proposal for a constitutional amendment to allow Congress to
prohibit the physical desecration of the flag. The Senate Judiciary Committee has
reported a similar measure, S.J.Res. 4.
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.
History
In 1968, in the midst of the Vietnam conflict, Congress enacted the first Federal
Flag Protection Act of general applicability.1 The law was occasioned by the
numerous public flag burnings in protest of the war.2 For the next 20 years, the lower
courts upheld the constitutionality of the federal statute and the Supreme Court
declined to review these decisions.3
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
1 P.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.
2 See, S.Rept. 90-1287, 90th Cong., 2nd Sess. 2 (1968).
3 See, 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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constitutionality of convictions for politically inspired destruction or alteration of the
American flag.4 In Street v. New York,5 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.6 In Spence v. Washington,7 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.8
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.9 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.10 The Texas Court of Criminal
Appeals reversed.11 In a 5 to 4 decision, the U.S. Supreme Court affirmed this
reversal on June 21, 1989,12 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.13
In response to this decision, Congress enacted the Flag Protection Act of 1989.14
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
4 See, 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).
5 394 U.S. 576 (1969).
6 Smith v. Goguen, 415 U.S. 566 (1974).
7 418 U.S. 405 (1975).
8 Goguen, at 582 and Spence at 415.
9 Tex. Penal Code Ann. § 42.09 (1989).
10 706 S.W.2d 120 (1986).
11 755 S.W.2d 92 (1988).
12 Texas v. Johnson, 491 U.S. 397 (1989).
13 Alaska 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).
14 P.L. 101-131 (H.R. 2978).

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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.15 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.16
The D.C. and Seattle cases were appealed to the Supreme Court under the act’s
expedited review provision.17 On June 11, 1990, the Court announced its ruling.18
In another 5 to 4 decision,19 the Court held that the Flag Protection Act of 1989 could
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 vote20 an amendment to the Constitution which would
15 See, United States v. O’Brien, 391 U.S. 367, 377 (1968).
16 United States v. Haggerty, 731 F.Supp. 415 (W.D. Wa. 1990) and United States v.
Eichman
, 731 F.Supp. 1123 (D.D.C. 1990)..
17 United States v. Eichman, 89-1433, and United States v. Haggerty, 89-1434.
18 United States v. Eichman, 496 U.S. 310 (1990).
19 It 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
20 The 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).

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have empowered Congress to enact legislation to protect the physical integrity of the
flag.
In each of the last four Congresses, the House passed proposed Constitutional
Amendments which would have authorized Congress to enact legislation to protect
the flag from physical desecration.21 In the 104th Congress, the Senate considered
a “flag” Amendment, but came three votes short of passing it.22 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.23
In the 108th Congress, the House, on June 3, 2003, passed H.J.Res. 4 by a vote
of 300 to 125.24 The Senate Judiciary Committee on July 22, 2004 reported S.J.Res.
4, a proposal by Senator Hatch that is similar to H.J.Res. 4.25 Like most earlier
proposals, H.J.Res. 4 and S.J.Res. 4 would add the following to the Constitution:
The Congress shall have power to prohibit the physical desecration of the flag
of the United States.
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.
21 In 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). In the 107th Congress, the House, by a vote of 298 to 125 passed H.J.Res. 36, 147
CONG. REC. H4068 (daily ed. July 17, 2001) (record vote no. 232).
22 On 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 Sens.
voting, 66 votes were required for passage).
23 146 CONG. REC. S1874 (daily ed. March 29, 2000)(record vote no. 48).
24 149 CONG. REC. H4842 (daily ed. June 3, 2003)(record vote no.234). The Judiciary
Committee had favorably reported the resolution on May 21, 2003, on a vote of 18-13.
H.Rept. 108-131. Prior to approving H.J.Res. 4, the committee voted down two proposed
alternatives. One, offered by Rep. Scott, would have limited the proposal’s coverage to flag
burning. The second, offered by Rep. Watt, would have required that congressional
regulation of flag desecration be consistent with First Amendment rights.
25 S.Rept. 108-334.

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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
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
26 Texas v. Johnson, 491 U.S. 397, at 405 (1989), citing Spence v. Washington, 418 U.S. 405,
410-411 (1974).
27 See, 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).
28 Johnson, at 406.
29 Id.
30 See, United States v. O’Brien, 391 U.S. 367, 377 (1968).

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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
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
31 Johnson, at 412, citing Boos v. Barry, 485 U.S. 312, 321 (1988).
32 Tex. Penal Code Ann. § 42.01 (1989).
33 Johnson, at 410.
34 Id., citing Spence at 414 n. 8.
35 Id. at 412.
36 Id. at 415-416.
37 United States v. Eichman, 496 U.S. 310, at 315 (1990). The majority also declined to
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.

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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.
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
38 Id.
39 See, United States v. O’Brien, 391 U.S. 367, 377 (1968).
40 The 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.
41 Eichman, at 315-316.
42 Id. at 317.

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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.
43 Id. at 318.