President Elect Donald Trump set off a new flurry of controversy on November 29th after tweeting his support for imposing harsh penalties on flag burners such as jail time or the loss of citizenship despite decades of settled case law establishing flag burning’s protection under the First Amendment. While there is little danger that this longstanding precedent will be disturbed, there is a history of legislative attempts to prohibit the discretion of the flag that surround the Court’s two landmark rulings Texas v. Johnson (1989) and United States v. Eichman (1990).
Before these landmark rulings, an informal national consensus had been reached in favor of penalizing desecration of the United States flag. As Justice Rehnquist noted in his dissent in Texas v. Johnson, every state except for Alaska and Wyoming had statutes prohibiting flag burning. Mr. Johnson had been charged under the Texas statute prohibiting vandalizing respected objects after burning a flag during a political protest during the 1984 Republican National Convention.
The Court held that Johnson’s conviction under the Texas statute was inconsistent with the First Amendment and that his burning of the flag constituted expressive conduct under the circumstances. Justice Brennan stated in the opinion, “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.” The Court also revisited its previous rulings in Bradenburg and Chaplinsky to outline the very narrow circumstances in which the Government’s interest in preserving the peace could overrule the First Amendment’s protection of expressive speech. Unfortunately for Texas, the Court disagreed that the circumstances surrounding Johnson’s burning of the flag were likely to incite imminent lawless action (and in fact produced no breaches of the peace), nor did they fall under the “fighting words” exception of Chaplinsky.
Johnson’s ruling was limited to the Texas statute at issue which left the door open for further legislative attempts to curtail flag burning. In response, Congress passed the Flag Protection Act of 1989 criminalizing 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. The 1990 decision in United v. Eichman fully enshrined flag burning’s designation as protected expressive conduct under the First Amendment by striking down the Flag Protection Act as unconstitutional, following the reasoning previously articulated in Johnson.
As with all contentious and emotional issues, well-settled legal precedent does not prevent attempts to circumvent it. The issue resurfaced in the mid-2000s with two new legislative attempts to work around the free speech aspect in the form of the Flag Protection Act of 2005 which focused on the intent to intimidate or incite violence and the Flag Desecration Amendment of 2006 which failed to pass the Senate by one vote.
Considering these attempts against the background of Johnson and Eichman, one could almost argue that they were proposed with the intention of never succeeding. Flag burning remains an attention grabbing but safe issue as it has been conclusively settled short of a successful constitutional amendment. Perhaps Mr. Trump’s tweet is the next installment in this low-risk grandstanding to appeal to his constituents with little danger of actual follow through.