United States v. Eichman United States v. Haggerty

• Decision Date: 11 June 1990
• Docket Number: Nos. 89-1433,89-1434,s. 89-1433
• Parties: UNITED STATES, Appellant, v. Shawn D. EICHMAN, David Gerald Blalock and Scott W. Tyler. UNITED STATES, Appellant, v. Mark John HAGGERTY, Carlos Garza, Jennifer Proctor Campbell and Darius Allen Strong
• Court: U.S. Supreme Court

496 U.S. 310

110 S.Ct. 2404

110 L.Ed.2d 287

UNITED STATES, Appellant,

v Shawn D. EICHMAN, David Gerald Blalock and Scott W. Tyler.

UNITED STATES, Appellant,

v. Mark John HAGGERTY, Carlos Garza, Jennifer Proctor

Campbell and Darius Allen Strong.

Nos. 89-1433, 89-1434.

Argued May 14, 1990.

Decided June 11, 1990.

Syllabus

After this Court held, in Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342, that a Texas statute criminalizing desecration of the United States flag in a way that the actor knew would seriously offend onlookers was unconstitutional as applied to an individual who had burned a flag during a political protest, Congress passed the Flag Protection Act of 1989. The Act criminalizes the conduct of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a United States flag, except conduct related to the disposal of a "worn or soiled" flag. Subsequently, appellees were prosecuted in the District Courts for violating the Act: some for knowingly burning several flags while protesting various aspects of the Government's policies, and others, in a separate incident, for knowingly burning a flag while protesting the Act's passage. In each case, appellees moved to dismiss the charges on the ground that the Act violates the First Amendment. Both District Courts, following Johnson, supra, held the Act unconstitutional as applied and dismissed the charges.

Held: Appellees' prosecution for burning a flag in violation of the Act is inconsistent with the First Amendment. The Government concedes, as it must, that appellees' flag burning constituted expressive conduct, and this Court declines to reconsider its rejection in Johnson of the claim that flag burning as a mode of expression does not enjoy the First Amendment's full protection. It is true that this Act, unlike the Texas law, contains no explicit content-based limitation on the scope of prohibited conduct. Nevertheless, 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. 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, and since the explicit exemption for disposal of "worn or soiled" flags protects certain acts traditionally associated with patriotic respect for the flag. Thus, the Act suffers from the same fundamental flaw as the Texas law, and its restriction on expression cannot " 'be justified without reference to the content of the regulated speech,' " Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333. It must therefore be subjected to "the most exacting scrutiny," id., at 321, 108 S.Ct., at 1164, and, for the reasons stated in Johnson, supra, 491 U.S., at 413-415, 109 S.Ct., at 2544-2545, the Government's interest cannot justify its infringement on First Amendment rights. This conclusion will not be reassessed in light of Congress' recent recognition of a purported "national consensus" favoring a prohibition on flag burning, since any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment. 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.

No. 89-1433, 731 F.Supp. 1123 (DDC 1990); No. 89-1434, 731 F.Supp. 415, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE and O'CONNOR, JJ., joined, post, p. 2410.

Sol. Gen. Kenneth W. Starr, Washington, D.C., for appellant.

William M. Kunstler, New York City, for appellees.

Justice BRENNAN delivered the opinion of the Court.

In these consolidated appeals, we consider whether appellees' prosecution for burning a United States flag in violation of the Flag Protection Act of 1989 is consistent with the First Amendment. Applying our recent decision in Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), the District Courts held that the Act cannot constitutionally be applied to appellees. We affirm.

I

In No. 89-1433, the United States prosecuted certain appellees for violating the Flag Protection Act of 1989, 103 Stat. 777, 18 U.S.C. § 700 (1988 ed. and Supp. I), by knowingly setting fire to several United States flags on the steps of the United States Capitol while protesting various aspects of the Government's domestic and foreign policy. In No. 89-1434, the United States prosecuted other appellees for violating the Act by knowingly setting fire to a United States flag in Seattle while protesting the Act's passage. In each case, the respective appellees moved to dismiss the flag-burning charge on the ground that the Act, both on its face and as applied, violates the First Amendment. Both the United States District Court for the Western District of Washington, 731 F.Supp. 415 (1990), and the United States District Court for the District of Columbia, 731 F.Supp. 1123 (1990), following Johnson, supra, held the Act unconstitutional as applied to appellees and dismissed the charges.¹ The United States appealed both decisions directly to this Court pursuant to 18 U.S.C. § 700(d) (1982 ed., Supp. I).² We noted probable jurisdiction and consolidated the two cases. 494 U.S. 1063, 110 S.Ct. 1779, 108 L.Ed.2d 780 (1990).

II

Last Term in Johnson, we held that a Texas statute criminalizing the desecration of venerated objects, including the United States flag, was unconstitutional as applied to an individual who had set such a flag on fire during a political demonstration. The Texas statute provided that "[a] person commits an offense if he intentionally or knowingly desecrates . . . [a] national flag," where "desecrate" meant to "deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action." Tex. Penal Code Ann. § 42.09 (1989). We first held that Johnson's flag-burning was "conduct 'sufficiently imbued with elements of communication' to implicate the First Amendment." 491 U.S., at 406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (citation omitted). We next considered and rejected the State's contention that, under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), we ought to apply the deferential standard with which we have reviewed Government regulations of conduct containing both speech and nonspeech elements where "the governmental interest is unrelated to the suppression of free expression." Id., at 377, 88 S.Ct., at 1679. We reasoned that the State's asserted interest "in preserving the flag as a symbol of nationhood and national unity," was an interest "related 'to the suppression of free expression' within the meaning of O'Brien " because the State's concern with protecting the flag's symbolic meaning is implicated "only when a person's treatment of the flag communicates some message." Johnson, supra, at 410, 109 S.Ct., at 2543. We therefore subjected the statute to " 'the most exacting scrutiny,' " 491 U.S., at 412, 109 S.Ct., at 2543, quoting Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988), and we concluded that the State's asserted interests could not justify the infringement on the demonstrator's First Amendment rights.

After our decision in Johnson, Congress passed the Flag Protection Act of 1989.³ The Act provides in relevant part:

"(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.

"(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled.

"(b) As used in this section, the term 'flag of the United States' means any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed." 18 U.S.C. § 700 (1988 ed., Supp. I).

The Government concedes in these cases, as it must, that appellees' flag burning constituted expressive conduct, Brief for United States 28; see Johnson, 491 U.S., at 405-406, 109 S.Ct., at 2540, but invites us to reconsider our rejection in Johnson of the claim that flag burning as a mode of expression, like obscenity or "fighting words," does not enjoy the full protection of the First Amendment. Cf. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). This we decline to do.⁴ The only remaining question is whether the Flag Protection Act is sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe appellees' expressive conduct.

The Government contends that the Flag Protection Act is constitutional because, unlike the statute addressed in Johnson, the Act does not target expressive conduct on the basis of the content of its message. The...