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Flag Protection: A Brief History and Summary of Recent Supreme Court Decisions and Proposed Constitutional Amendment

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Publication Date: June 2006

Publisher(s): Library of Congress. Congressional Research Service

Series: 95-709

Topic: Culture and religion (Symbols, emblems, and awards)

Abstract:

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 and 108th Congresses, such proposals were 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 the federal Flag Protection Act of 1989. 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 antidesecration 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 109th Congress, H.J.Res. 5, H.J.Res.10, and S.J.Res. 12 would authorize Congress to prohibit and penalize desecration of the flag of the United States. H.J.Res. 5 would also authorize the States to prohibit and penalize desecration. On June 22, 2005, the House passed H.J.Res. 10 by a vote of 286 to 130. The Senate is expected to take up the proposed amendment in late June 2006.