• Last updated on November 11, 2022

The Supreme Court reaffirmed its 1989 decision that flag burning was a constitutionally protected form of free speech.

The Supreme Court, by a 5-4 majority, struck down the 1989 Flag Protection ActFlag Protection Act, which Congress passed to void the Court’s ruling in Texas v. Johnson[case]Texas v. Johnson[Texas v. Johnson] (1989), which overturned a Texas flag burning statute. Justice William J. Brennan, Jr.,Brennan, William J., Jr.;Eichman, United States v.[Eichman, United States v.] in the opinion for the Court, suggested that the justices would probably regard virtually any law directed at forms of flag desecration as unconstitutional because such laws would inevitably imply governmental disapproval of the message inherent in flag burning.Symbolic speech;Eichman, United States v.[Eichman, United States v.]Flag desecration;Eichman, United States v.[Eichman, United States v.]

In Johnson, the Court declared a Texas statute unconstitutional because it explicitly stated that the desecration must be done to “offend” someone. This provision flew in the face of the cardinal tenet of allowable time, place, and manner regulations, namely, that they may not be used by officials who do not like the ideas expressed. Congress sought to circumvent the Johnson holding by carefully avoiding the expression of ideas question, but the Court found that the government’s purpose was clearly the suppression of ideas and, therefore, that the strict scrutiny test needed to be applied to the congressional enactment. The Court found the 1989 federal law could not pass such a strict test. Justices William H. Rehnquist, Byron R. White, John Paul Stevens, and Sandra Day O’Connor dissented, arguing that there were so many ways that demonstrators could exercise their First Amendment rights that laws preventing flag desecration were not a real infringement on their rights.

Brandenburg v. Ohio

Flag desecration

Gitlow v. New York

O’Brien, United States v.

Schenck v. United States

Symbolic speech

Texas v. Johnson

Tinker v. Des Moines Independent Community School District

Whitney v. California

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