A History of the Flag Protection Act of 1989
by Pieter J. Friedrich
6/2/03

The most serious effort to criminalize "desecration of the flag" on a federal level began with the Supreme Court's decision in Texas v. Johnson (1989). Gregory Lee Johnson, a citizen of Texas and member of the Revolutionary Communist Party, was convicted of "desecrating a flag in violation of Texas law" (Texas v. Johnson 1989) after he publicly burned a flag as a form of protest. The Texas Court of Criminal appeals held that the Texas law which criminalized flag desecration was unconstitutional, and the Supreme Court upheld the decision in a 5-4 vote. This was the first the Supreme Court had directly considered the constitutionality, under the First Amendment, of flag desecration. Justice William Brennan, who delivered the Court's opinion, said, "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable...We have not recognized an exception to this principle even where our flag has been involved." (Texas v. Johnson 1989) Justice Kennedy said, "The hard fact is that sometimes we must make decisions we do not like...It is poignant but fundamental that the flag protects those who hold it in contempt."

According to a Newsweek poll, 65 percent of Americans disagreed with the ruling in Johnson, (Jacoby and McDaniel 1989, 18) and anger at the decision was bipartisan. Representative Douglas Applegate (D-OH) denounced the ruling by calling it "the greatest travesty in the annals of jurisprudence." Rep. Applegate also asked, "Are there any limitations? Are they going to allow fornication in Times Square at high noon?" (Jacoby and McDaniel 1989, 18) In immediate reaction to the Supreme Court decision, "the Senate passed a resolution expressing 'profound disappointment." (Jacoby and McDaniel 1989, 18) On July 24th, Representative Jack Brooks (D-TX) and his cosponsor Representative Don Edwards (D-CA) introduced the Flag Protection Act of 1989 (H.R. 2978) in the House, while Senator Robert Dole (R-KS) introduced the Anti-Flag Desecration Act of 1989 (S. 607) in the Senate. Under The Flag Protection Act of 1989, "Whoever knowingly mutilate[d], deface[d], burn[ed], or trample[d] upon any flag of the United States" would "be fined under this title or imprisoned for not more than one year, or both." (Flag Protection Act of 1989) Though I could not find information regarding the possible backing of the Act by major interest groups, I believe that for the most part the decision to introduce the Act was motivated by public opinion.

At the same time, a Constitutional amendment was introduced in the House Judiciary Committee by Rep. Edwards. The amendment read, "The Congress and the State shall have power to prohibit the physical desecration of the flag of the United States," (House 1989) and according to Representative Sensenbrenner (R-WI), the amendment signified the presence of "bipartisan support in Congress for overturning the Court's decision." (House 1989) He also went on to quote a poll from the Milwaukee Journal, the largest newspaper in Wisconsin, in which 75 percent of the citizens of Wisconsin said they supported a flag-protecting constitutional amendment. "I just draw everybody's attention [to the fact] that Michael Dukakis carried Wisconsin in the presidential elections," said Rep. Sensenbrenner. "So this is not just a Republican issue. It is everybody's issue."

Though Democrats and Republicans agreed that something must be done to stop criminalize flag-burning, bipartisan consent on how to properly legislate flag-burning was not, for the most part, present. The majority of Democrats strongly supported the passage of the Flag Protection Act of 1989. Most Republicans, however, believed the bill was a waste of time as it would probably be overturned by the Supreme Court. Instead, Republicans said, a constitutional amendment was necessary instead.

The Flag Protection Act was referred to the Democratic-controlled House Judiciary Committee. In a House Judiciary Committee hearing, Rep. William Dannemeyer (R-CA) argued with witness Professor Walter Dellinger, III, that just as Roe v. Wade could not be "abrogate[d]...by the adoption of a statute," so Johnson could not be abrogated by the adoption of a statute. If the Flag Protection Act was signed into law, Rep. Dannemeyer said, then "we're going to be back before the U.S. Supreme Court," to decide "whether or not the statute Congress has adopted can pass constitutional muster." (House 1989)

The bill was approved by the House Judiciary Committee in a 28-to-6 vote, and sent to the Committee of the Whole House on the State of the Union. According to a New York Times article, "Democratic leaders had hoped to pass the bill before the August recess under a special fast-track procedure but decided to put it off until Congress returns after Labor Day. They were squeezed for time under House rules, and Republicans had complained that procedures were being short-circuited." (Toner 1989, A11) On September 7th, 1989, 51 additional sponsors were reported added to H.R. 2978. (House 1989, vol. 135 no. 112) On September 12th, during discussion of H.R. 2978 on the House floor, Rep. Sensenbrenner rose in opposition to the bill. He protested that, "to use a statute to amend the Constitution places the Bill of Rights in far more jeopardy than to amend the Constitution by the cumbersome and lengthy process established in article 5." (House 1989, vol. 135 no. 115) Rep. Edwards responded to this by saying, "The Supreme Court has not said we cannot protect the flag. The Supreme Court has merely said we cannot protect the flag by a statute that focuses on expressive intent. So we have stripped out the unconstitutional elements of the current Federal law and made it independent of the message a flag burner would convey." (House 1989, vol. 135 no. 115) At the conclusion of this particular discussion, the House voted to suspend the rules and pass the bill as amended. After several amendments were proposed to the bill in the Senate, one of which included maintaining the flag upon the floor or ground as a criminal act, (House 1989, vol. 135 no. 131) the bill passed the Senate by a vote of 91-to-9. (House 1989, vol. 135 no. 132) The bill then returned to the House, where the amendments were accepted in a 371-to-43 vote, with 18 members abstaining, (House 1989, vol. 135 no. 137) after which the bill was sent to the President's desk.

Like most other Republicans, President George H. W. Bush supported a constitutional amendment to ban flag-desecration. President Bush's backing of the amendment earned praise from Republicans, yet many in the media scorned his position. A writer in the Manhattan Lawyer said the "prize" for "the most grotesque exercise in cynicism, gutlessness and trivialization of the Constitution" should go to "President Bush's campaign to ban flag desecration by amending the Constitution," (Taylor 1989, 12) and one article in Maclean's dubbed the President's calls for a constitutional amendment "emotional appeals." (No Author 1989, 27) President Bush even drew international criticism when an article in the British publication, The Economist, said, "President George Bush seems to relish the task [of amending the Constitution]. He has already called for more constitutional amendments than has any other modern president. He wants the constitution to ban abortion, balance the budget, give him a line-item veto over spending, allow school prayer and preserve the flag from burning." (No Author 1989 26) After stating his agreement with the Supreme Court ruling in Johnson in an opinion editorial for the Washington Post, Senator Bob Kerrey (D-NE) then noted the widespread public support for a constitutional amendment to criminalize flag-burning, and accused Bush of choosing "the path of least resistance and greatest political gain." (Kerrey 1989, D7)

Because President Bush favored protection of the flag by federal law he did not veto the Flag Protection Act. However, as mentioned, he did side with Republicans in supporting a constitutional amendment over a federal statute, and so he did not sign the bill. According to Public Papers of the Presidents, President Bush gave a brief statement regarding the bill on October 26th, 1989, in which he said in part, "While I commend the intentions of those who voted for this bill, I have serious doubts that it can withstand Supreme Court review. The Supreme Court has held that the Government's interest in preserving the flag as a symbol can never be compelling enough to justify prohibiting flag desecration that is intended to express a message. Since that is precisely the target of this bill's prohibition, I suspect that any subsequent court challenge will reach a similar conclusion." (President Bush 1989) President Bush decided that, "Nevertheless, because this bill is intended to achieve our mutual goal of protecting our Nation's greatest symbol, and its constitutionality must ultimately be decided by the courts, I have decided to allow it to become law without my signature. I remain convinced, however, that a constitutional amendment is the only way to ensure that our flag is protected from desecration." So the Flag Protection Act became law on October 28th, 1989, and was assigned Public Law No. 101-131. Just days before, USA Today reported the bipartisan refusal of the Senate to approve the flag-burning amendment which had been introduced that summer; approval of the amendment required a two-thirds majority (or 66 votes), and so the amendment failed when the final vote was 51-to-48. (Phillips 1989, 4A) The decision of the Senate echoed a poll from earlier in the year in which 51 percent of Americans said they "would rather seek to protect the flag through legislation than a constitutional amendment," while only 31 percent of Americans favored a constitutional amendment. (Dewar and Kenworthy 1989, A1)

Immediately after the passage of the Flag Protection Act of 1989, demonstrators began rallying to protest the Act by burning American flags. The San Francisco Chronicle reportehd that just hours after the law went into effect, demonstrators in Berkeley, CA, burned several flags in protest, but managed to avoid arrest (Mellinkoff 1989, A26); four protesters, said The Washington Post, including Gregory Johnson of Texas v. Johnson and Shawn Eichman, were arrested on the steps of the nation's capitol on October 30th for burning American flags. (Wheeler 1989, B3) Eichman, an artist from New York City, was charged under the Flag Protection Act of 1989, and released on bond. The Washington Post reported that the prosecutor, U.S. Attorney Jay B. Stephens, said "It is our responsibility to enforce [the Flag Protection Act]," yet he also admitted that "we think there are substantial doubts" about the constitutionality of the Act. One of the defense lawyers, William M. Kuntsler, said, "Congress basically knew [the new statute] was unconstitutional, and so did the president," and Kunstler and the other defense lawyers agreed to appeal the case up to the Supreme Court. (Thompson 1989, A5) I could not find information about whether or not Congress was pleaed with the way in which the new law was enforced, but I believe that they probably would have been, considering the margin by which the Act passed.

As expected, U.S. v. Eichman (1990) was appealed up to the Supreme Court, where it was argued on May 14th, 1990. Justice William Brennan presented the Court's opinion.

The Court addressed the popularity of the Act, admitting that desecration of the flag was very offensive to most people. The government, said the Court, had recognized "a purported "national consensus" favoring a prohibition on flag burning," yet pointed out that, "even assuming such a consensus exists, 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." The Court also argued that though the State did have an interest in "in preserving the flag as a symbol of nationhood and national unity," that interest "related to the suppression of free expression...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." (U.S. v. Eichman 1990)

The Flag Protection Act read, 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." (Flag Protection Act of 1989)

The main way in which the Flag Protection Act differed from the Texas state law which had been declared unconstitutional in Johnson was its attempt to avoid outlawing flag desecration on a content-basis. For instance, the Texas state law criminalized desecration of the flag 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," (U.S. v. Eichman 1990) while the Flag Protection Act prohibited any "desecration" of the flag which was not intended as a "disposal of a flag when it has become worn or soiled," (Flag Protection Act of 1989) rather than merely criminalizing desecration that the desecrator knew to be offensive. The Texas law was too much like thought-crime legislation for the comfort of the Supreme Court justices, and so the legislators who passed the Act believed the criminalization of all desecration would pass muster with the Court.

The Court, however, insisted that desecration of the flag was constitutionally protected under the First Amendment, whether the desecrator had knowledge of the offense given to onlookers or not. Justice Brennan said that, "The Government's interest in protecting the 'physical integrity' [496 U.S. 310, 316] ¾of a privately owned flag rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals. But the mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, does not diminish or otherwise affect the symbol itself in any way. For example, the secret destruction of a flag in one's own basement would not threaten the flag's recognized meaning. Rather, the Government's desire to preserve the flag as a symbol for certain national ideals is implicated 'only when a person's treatment of the flag communicates [a] message' to others that is inconsistent with those ideals." In other words, the Court argued that the Flag Protection Act was in the same vein as the Texas state law of Johnson in that it was essentially thought-crime legislation. The Act excepted "conduct consisting of the disposal of a flag when it has become worn or soiled" (Flag Protection Act of 1989) from prohibition, yet how was the government to know the motivations of a flag-burner? After all, it was possible that someone might respectfully dispose of a worn flag, and their motivations being misinterpreted, be subject to arrest for desecration of the flag. Contrariwise, it was possible that a protester might burn a flag, and once arrested defend himself by arguing that his flag was "worn" or "soiled" and he was merely "respectfully dispos[ing]" of that flag.

This thought was continued by Justice Brennan: "As we explained in Johnson, supra, at 416-417: "[I]f we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role - as where, for example, a person ceremoniously burns a dirty flag - we would be...permitting a State to `prescribe what shall be orthodox' by saying that one may burn the flag to convey one's attitude toward it and its referents only if one does not endanger the flag's representation of nationhood and national unity. Although Congress cast the Flag Protection Act of 1989 in somewhat broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: It suppresses expression out of concern for its likely communicative impact."

The Supreme Court ruled 5-to-4 that the Flag Protection Act of 1989 was unconstitutional, thus reaffirming its opinion in Johnson.

Immediately following the decision of the Supreme Court in Eichman, calls were again heard in Congress for the passage of a flag burning amendment. A reporter for the New York Times wrote regarding the dissenting opinion written by Justice Stevens. "Today," wrote the reporter, "the dissenters said that those who burn the flag may be expressing a variety of messages, and that the Government has a legitimate and independent interest in preserving the flag's symbolic value ''regardless of which of many different ideas may have motivated a particular act of flag burning.'' (Greenhouse 1990, 1A) President Bush expressed his disagreement with the ruling, saying that flag burning endangered "the fabric of our country." (Krauthammer 1990) Charles Krauthammer wrote in The Washington Post that, "The threat to the Constitution from this amendment and the grab bag of others that every frustrated politician wants to tag on to serve some narrow partisan interest is quite real," (Krauthammer 1990, A25) and criticized President Bush for backing a flag burning amendment; Krauthammer named the amendment, in the event that it passed, an act of "politically expedient legislative folly." (Krauthammer 1990, A25)

The flag burning amendment was reintroduced. On June 21st, 1990, the House refused to pass the flag burning amendment, and on June 26th, the Senate followed suit, and the debate over the flag desecration issue died down.

If we are to prohibit flag desecration, why should we not prohibit the destruction of pictures of flags, or of napkins with flag designs? Or why should we not prohibit the citizenry from placing flag bumper stickers on their cars, and thus subjecting a representation of the flag to bad weather and filth. Or, why should we not prohibit refusal to salute the flag or say the Pledge of Allegiance? I, personally, do not salute the flag or say the Pledge of Allegiance, though I do hold the U.S. flag in high esteem. Is my refusal to participate in these actions disrespectful? And if it is disrespectful, then is it disrespectful enough to qualify as "desecration?" Where does one draw the line?

I believe the ruling of the Supreme Court in Eichman was proper. Limiting the First Amendment rights of the citizenry is too dangerous to justify legislating the distasteful actions of a handful of protesters. Not only do I believe that legislation banning flag desecration is a violation of the First Amendment, but I also believe that attempting to legislate the issue opens the door to thought-crime legislation. I believe that the flag is nothing more than a piece of cloth. Although most average citizens hold the flag in respect, it means different things to different people and it is improper that the citizenry should not be allowed to hold and express views regarding the flag which differ from the norm.

To quote a columnist from The Christian Science Monitor, "Can we legislate reverence? And even if we could, do we want to perpetuate the trend, so evident in late-20th-century America, toward more and more laws reaching into areas that once were defined, and policed, by local mores and customs? Are we content to replace the inner restraints of ethics with the outer restrictions of legality?

"If we are, we've missed the point. Patriotism lives through substantive ideas, not just symbolic objects. Protect the substance, and the symbols will take care of themselves." (Kidder 1989, 13)

References

1. Bush, President George H. W. 1989. "Statement on the Flag Protection Act of 1989." Public Papers of the Presidents, October 26.
2. Congressional Record. 1989. 101st Cong., 1st sess., vol. 135, no. 112.
3. Congressional Record. 1989. 101st Cong., 1st sess., vol. 135, no. 115.
4. Congressional Record. 1989. 101st Cong., 1st sess., vol. 135, no. 131.
5. Congressional Record. 1989. 101st Cong., 1st sess., vol. 135, no. 132.
6. Congressional Record. 1989. 101st Cong., 1st sess., vol. 135, no. 137.
7. Dewar, Helen and Kenworthy, Tom. 1989. "Support Lags for Amendment To Prohibit Flag Burning; Voters Seen Opposing Change in Constitution." The Washington Post, July 25, A1.
8. Flag Protection Act of 1989. H.R. 2978.
9. Flag Protection Act. 1989. U.S. Code. Vol. 18, sec. 700.
10. Greenhouse, Linda. 1990. "Supreme Court Voids Flag Law; Stage Set for Amendment Battle." The New York Times, June 12, 1A, column 1.
11. Jacoby, Tamar with McDaniel, Ann. 1989. "A Fight for Old Glory." Newsweek, July 3, 18.
12. Kerrey, Senator Bob. 1989. "The Flag Stand for the Freedom to Be Wrong." The Washington Post, July 23, D7.
13. Kidder, Rushworth M. 1989. "Substance of the Symbol Protects the Flag." The Christian Science Monitor, July 17, 13.
14. Krauthammer, Charles. 1990. "Scoundrel's Refuge: The Flag Debate, Again." The Washington Post, June 15, A25.
15. Mellinkoff, Abe. 1989. "Flag-Burning Ends With Hot Politics." The San Francisco Chronicle, November 1, A26.
16. No Author. 1989. "Congress Shall Make..." The Economist, August 5, 26.
17. No Author. 1989. "Protecting the Flag." Maclean's, July 10, 27.
18. Phillips, Leslie. 1989. "Flag-Burning Amendment Fails; 10 Republicans Among the 48 Senators Opposed." USA Today, October 20, 4A.
19. Taylor Jr., Stuart. 1989. "Taking Issue." Manhattan Lawyer, July 18, 12.
20. Texas v. Johnson. 1989. 491 U.S. 397
21. Thompson, Tracy. 1989. "Three Charged in Capitol Flag Burning; First Test of New Law is Expected to Reach Supreme Court." The Washington Post, November 2, A5.
22. Toner, Robin. 1989. "House Panel Backs Bill To Outlaw Flag Burning." New York Times, July 27, A11, column 1.
23. United States v. Eichman. 1990 496 U.S. 310
24. U.S. Congress. House. Judiciary Committee. 1989. U.S. Flag Desecration. 101st Cong., 1st sess., 13 July.
25. U.S. Congress. House. Judiciary Committee. 1989. Statutory and Constitutional Responses to the Supreme Court Decision Regarding Desecration of the U.S. Flag. 101st Cong., 1st sess., 18 July.
26. Wheeler, Linda. 1989. "4 Arrested in Burning Of Flag on Capitol Steps; Protesters Seek Test of Anti-Desecration Law." The Washington Post, October 31, B3.