United States v. Eichman

Brief Fact Summary.

The United States petitioned the United States Supreme Court to pass on the constitutionality of the Flag Protection Act of 1989.

Synopsis of Rule of Law.

The Flag Protection Act of 1989 represents an unconstitutional content-based restriction on freedom of expression.

Facts.

The United States petitioned the United States Supreme Court to pass on the constitutionality of the Flag Protection Act of 1989.

Issue.

Whether the Flag Protection Act of 1989 represents an unconstitutional content-based restriction on freedom of expression.

Held.

Yes. The act imposes an unconstitutional content-based restriction upon free expression. The Flag Protection Act of 1989 represents an unconstitutional content-based restriction on freedom of expression.

Dissent.

(Stevens, J.): I dissent because the majority opinion deviates from the considerations set forth in Texas v. Johnson, 491 U.S. 397 (1989).

Discussion.

The Flag Protection Act of 1989 represents an unconstitutional content-based restriction on freedom of expression. The act makes it a crime to intentionally deface or destroy the flag of the United States, except for purposes of disposing of an old flag. The United States asserts that the government has an interest in protecting the identity of the flag as the distinctive symbol of the nation. As such, the United States asserts that the act is not directed toward restricting the content of the message that might be conveyed by the act of destroying a flag. The conduct prohibited by the act clearly targets activities that imply disrespect for the flag. The private destruction of a flag outside of public view would clearly not denigrate the integrity of the symbol, yet that activity would be criminalized under the Flag Protection Act. By contrast, the act exempts destruction of a flag for disposal purposes. That exemption clearly aims at protecting activities traditionally associated with respect for the symbolism of the flag.