Lexis Nexis - Case Brief

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Law School Case Brief

United States v. Eichman - 496 U.S. 310, 110 S. Ct. 2404 (1990)


The government may create national symbols, promote them, and encourage their respectful treatment. But the Flag Protection Act, 18 U.S.C.S. § 700, goes well beyond this by criminally proscribing expressive conduct because of its likely communicative impact. If there is a bedrock principle underlying U.S. Const. amend. I, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.


Defendants in separate cases were prosecuted for burning a United States flag as an act of protest in violation of the Flag Protection Act of 1989. In both cases, the district courts dismissed the charges on the grounds that the Act, both on its face and as applied, violated the First Amendment of the Constitution. The United States appealed both decisions. The Supreme Court of the United States affirmed.


Did the prosecution of defendants under Flag Protection Act for burning the American flag violate Federal Constitution's First Amendment?




The defendants' flag burning constituted expressive conduct, and flag burning as a mode of expression enjoyed the full protection of the First Amendment. The Act improperly suppressed expression out of concern for its likely communicative impact, even though it contained no explicit content-based limitation on the scope of prohibited conduct. The Act had to be subjected to the most exacting scrutiny, and the government's interest could not justify its infringement on First Amendment rights. Furhter, the Act did not advance the government's legitimate interest in preserving the flag's function as an incident of sovereignty, since burning a flag did not threaten to interfere with the association between flag and nation. Even assuming that there was a national consensus favoring a prohibition against flag burning, any suggestion that the government's interest in suppressing speech became more weighty as popular opposition to that speech grew was foreign to the First Amendment.

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