Case Summary and Outcome

The U.S. Supreme Court affirmed that the 1989 Flag Protection Act was unconstitutional and dismissed the charges against the appellees who were prosecuted in two separate cases for knowingly setting fire to the US flag. The Act had been passed following the Supreme Court’s decision in Texas v Johnson which struck down a Texas statute criminalizing desecration of the U.S. flag as unconstitutional. The Court reasoned that although the Act, unlike the Texas statute, contains no explicit content-based limitation on the scope of prohibited conduct it nevertheless was not based on protecting the physical integrity of the flag in all circumstances. Rather, it was designed to protect the flag from symbolic speech likely to cause offense to others and therefore related to the suppression of free expression.

Facts

Months after the controversial decision of the Supreme Court in Texas v. Johnson, which struck down as unconstitutional a Texan statute criminalizing desecration of venerated objects, Congress passed the Flag Protection Act. The new legislation imposed a fine and/or a maximum one-year imprisonment on anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.” [p. 314] The Texan statute criminalized desecration of the national flag where desecration meant “to deface, damage or otherwise physically mistreat  in a way that the actor knows will seriously offend one or more persons.”

The new Act replaced a former federal statute which Congress perceived might be unconstitutional following  Johnson because it prohibited “knowingly cast[ing] contempt upon any flag on the United States by publicly mutilating, defacing, burning or trampling upon it.” The Flag Protection Act, accordingly, intended to circumvent  Johnson by prohibiting mistreatment of the flag without regard to any message being conveyed.

The federal government subsequently prosecuted a number of individuals who had burned the American flag during two separate demonstrations against the government’s policies and the passage of the Act respectively.

Based on the Johnson decision, both the District Court for the Western District of Washington and the U.S. District Court for the District of Columbia found the Act unconstitutional as applied to the defendants and dismissed the charges. The U.S. government appealed the decisions to the Supreme Court.

Decision Overview

Justice Brennan delivered the majority opinion of the Court, the same five person majority of justices as in Texas v. Johnson.

Conceding that the appellees’ flag-burning was expressive conduct, the government asked the Court to reconsider its rejection in Johnson of the claim that flag-burning, like obscene or “fighting words”, shouldn’t enjoy full First Amendment protection. The Court declined to do so.

Next, the government contended that, unlike the Texas statute, the Flag Protection Act did not target expressive conduct on the basis of the actor’s message. Instead, it prohibited the actual acts of damaging or mistreating the flag.  The Court itself noted that Congress, in order to bring the statute in line with the ruling in Johnson, had removed the required element that the act of desecration would have to “cast doubt upon” the flag. Despite this change, the Court reasoned that the government’s interest in enforcing the law – protecting the physical integrity of the flag under all circumstances – was still “related to the suppression of free expression and concerned with the content of such expression” [p. 315] because the government’s desire to preserve the flag as a symbol for certain national ideals is only engaged when the treatment of the flag communicates a message to others that is inconsistent with those ideals. Further, the Court said that the language of of the Act’s prohibitions criminalizing anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the ground or tramples upon any flag” suggests disrespect and a focus on acts likely to damage the flag’s symbolic value.

Concluding that the statute suppressed expression out of concern for its communicative impact, the Court applied “the most exacting scrutiny” to assess whether the appellees’ convictions were justified under the First Amendment. While acknowledging that the government can certainly promote national symbols and encourages other to respect them, the Court held that the statute went “well beyond this by criminally proscribing expressive conduct because of its likely communicative impact.” [p. 318]

Accordingly, the Court affirmed the judgments of the district courts that the charges brought under the Act had violated the appellees’ First Amendment right to free speech.

Dissenting opinion:

Justice Stevens, joined by Chief Justice Rehnquist, Justice White, and Justice O’Connor, dissented. Justice Stevens said that the ideas expressed by flag burners are various and often ambiguous and that government should protect the symbolic value of the flag regardless of the specific object and content of the flag burners’ speech.  Further, he said, that the prosecution in the present case doesn’t depend on the object of the defendants’ protest and, moreover, that the prohibition doesn’t entail any interference with the speaker’s freedom to express his ideas by other means. Justice Stevens went on to weigh up the individual’s interest in expressing himself in whichever way he chose against the societal interest in preserving the symbolic value of the flag coming down strongly in favour of the latter.  However in light of the events over the last thirty years that have altered the country’s image in the eyes of many Americans and the fact that the integrity of the flag has been compromised by some leaders advocating compulsory worship and others using the national symbol as a pretext in partisan disputes, Justice Stevens said that “it might be appropriate to defer to the judgment of the majority” on the additional basis that it is merely confirming what it had already decided in Johnson.