Facts
- After Texas v. Johnson invalidated a state flag-desecration law as applied to political protest, Congress enacted the Flag Protection Act of 1989.
- The Act made it a federal crime to knowingly mutilate, deface, physically defile, burn, maintain on the floor or ground, or trample upon a U.S. flag.
- The Act exempted disposal of a flag that had become worn or soiled.
- On the Act’s effective date, demonstrators in Washington, D.C. (including Shawn D. Eichman and others) burned U.S. flags on the steps of the U.S. Capitol to protest government policy and the new law.
- In Seattle, other demonstrators burned U.S. flags at a protest against the statute’s enactment.
- The participants were prosecuted under the Act and moved to dismiss on First Amendment grounds.
- Two federal district courts dismissed the charges as unconstitutional as applied.
- The United States appealed, and the Supreme Court consolidated the cases.
Issues
- Whether the Flag Protection Act of 1989 violates the First Amendment when applied to politically motivated flag burning.
- Whether the government’s interest in protecting the flag’s symbolic status renders the Act a content-based restriction on expressive conduct.
- Whether the Act may be sustained as a content-neutral regulation of conduct under United States v. O’Brien.
Decision
- The Supreme Court held, 5–4, that the Flag Protection Act of 1989 is unconstitutional as applied to political flag burning.
- The Court treated the flag burnings as expressive conduct protected by the First Amendment.
- The Court concluded the government’s asserted interest—preserving the flag’s status as a symbol—was related to suppressing the communicative impact of the conduct.
- The Court rejected application of O’Brien because the interest served by the Act was not independent of expression.
- The dismissals of the prosecutions were affirmed.
Legal Principles
- Expressive conduct receives First Amendment protection when the conduct is undertaken to convey a message likely to be understood by observers.
- A restriction is content-based when the government’s asserted interest depends on the communicative impact of the regulated conduct.
- Government efforts to preserve a symbol’s “status as a symbol” are ordinarily tied to the content of messages conveyed by treatment of that symbol.
- A law cannot be upheld under O’Brien when the governmental interest is aimed at suppressing expression rather than addressing a noncommunicative harm.
- The government may not criminalize expression because it is offensive, disagreeable, or perceived as disrespectful toward national symbols.
Conclusion
The Court invalidated the Flag Protection Act as applied to political flag burning, holding that protecting the flag’s symbolic value is a content-based interest tied to suppressing expression and cannot justify punishment of expressive conduct under the First Amendment.