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United States v. Eichman

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Title: United States v. Eichman  
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United States v. Eichman

United States v. Eichman
Argued May 14, 1990
Decided June 11, 1990
Full case name United States v. Shawn Eichman et al.
Citations 496 U.S. 310 (more)
Prior history Consolidation of United States v. Eichman (D.D.C.), 731 F.Supp. 1123 (1990) and United States v. Haggerty (W.D.Wash), 731 F.Supp. 415 (1990)
The government's interest in preserving the flag as a symbol did not outweigh the individual right to disparage that symbol through expressive conduct.
Court membership
Case opinions
Majority Brennan, joined by Marshall, Blackmun, Scalia, Kennedy
Dissent Stevens, joined by Rehnquist, White, O'Connor
Laws applied
U.S. Const. amend. I

United States v. Eichman, 496 U.S. 310 (1990) was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v. Haggerty. It built on the opinion handed down in the Court's 1989 decision in Texas v. Johnson, which invalidated on First Amendment grounds a Texas state statute banning flag-burning.

The Supreme Court held that the government cannot prosecute a person for burning a United States flag, because to do so would be inconsistent with the First Amendment. The Government conceded that flag-burning constitutes expressive conduct and enjoys the First Amendment's full protection. It is clear that the Government's asserted interest in protecting the "physical integrity" of a privately owned flag in order to preserve the flag's status as a symbol of the Nation and certain national ideals, is related to the suppression, and concerned with the content of free expression.

The mere destruction or disfigurement of a symbol's physical manifestation does not diminish or otherwise affect the symbol itself. The Government's interest is implicated only when a person's treatment of the flag communicates a message to others that is inconsistent with the identified ideals of the flag. The precise language of the Act's prohibitions confirms Congress' interest in the communicative impact of flag destruction, since each of the specified terms -- with the possible exception of "burns" -- unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's symbolic value. This is further supported by the Act's explicit exemption for disposal of "worn or soiled" flags, which the Act protects from prosecution since disposing a worn or soiled flag does not desecrate the flag's symbolic nature. Thus, the Act is struck down as its restriction on expressive conduct cannot "‘be justified without reference to the content of the regulated speech,'" Boos v. Barry, 485 U.S. 312, 320. It must therefore be subjected to "the most exacting scrutiny," id. at 321, which cannot justify its infringement on First Amendment rights. While flag desecration -- like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures -- is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Pp. 313-319.

Subsequent actions

On remand, the Eichman case was not dismissed, as those defendants had only been charged with flag desecration. However, the Haggerty case had an additional charge of destruction of government property, as the burned flag was alleged to have been stolen from Seattle's Capitol Hill Post Office. To that charge, all four Seattle defendants pled guilty and were fined. Garza and Strong (who had prior convictions) served 3 days in jail each.

When Republicans retook control of Congress for the 104th session, the Flag Desecration Amendment was first proposed, which would grant the federal government the authority to proscribe flag burning. A resolution for this Amendment passed the House in every session from the 104th until the 109th Congress, but never got past the Senate (in the most recent vote, passage in the Senate failed by one vote), and has not been considered since the 109th Congress.

See also

External links

  • Text of United States v. Eichman, 496 U.S. 310 (1990) is available from:  Findlaw  Justia  Esquilax 
  • US vs. Eichman audio recording of oral argument, May 14, 1990
  • First Amendment Library entry on Eichman v. United States
  • Street v. New York
  • Texas v. Johnson
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