A member of the CommunistCommunism Party burned the U.S. flag outside the Republican National Convention during a presidential election year in violation of Texas’s statute banning desecration of the flag. By a 5-4 vote, the Supreme Court struck down the Texas statute on the grounds that the burning of the U.S. flag was a form of symbolic speech protected by the First Amendment. The Court looked rather heavily to the motives for the flag burning and decided that the act was really a form of political protest. Some scholars thought that the Court’s position would have been more readily defensible if it had relied on a distinction between thought and action, which would have been an easier test to follow than one that relied on the flag burner’s motives.Symbolic speech;Texas v. Johnson[Texas v. Johnson]Flag desecration;Texas v. Johnson[Texas v. Johnson]

The Court’s decision set off a howl of protest across the nation. People began calling for a constitutional amendment to exempt flag burning from First Amendment protection, but this effort failed in Congress because of concerns about the dangers involved in amending the Bill of Rights. Congress did attempt to overcome the Court’s objections with a statute, the Flag Protection Act of 1989. The Court struck down the federal statute as it had the Texas statute in United States v. Eichman[case]Eichman, United States v.[Eichman, United States v.] (1990).

Brandenburg v. Ohio

Clear and present danger test

Eichman, United States v.

Flag desecration

Gitlow v. New York

O’Brien, United States v.

Schenck v. United States

Symbolic speech

Tinker v. Des Moines Independent Community School District

Whitney v. California