United States v. D Eichman W/Opinion of the Court

by William J. Brennan, Jr.

In these consolidated appeals, we consider whether appellees' prosecution for burning a United States flag in violation of the Flag Protection Act of 1989 is consistent with the First Amendment. Applying our recent decision in Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), the District Courts held that the Act cannot constitutionally be applied to appellees. We affirm.

* In No. 89-1433, the United States prosecuted certain appellees for violating the Flag Protection Act of 1989, 103 Stat. 777, 18 U.S.C. § 700 (1988 ed. and Supp. I), by knowingly setting fire to several United States flags on the steps of the United States Capitol while protesting various aspects of the Government's domestic and foreign policy. In No. 89-1434, the United States prosecuted other appellees for violating the Act by knowingly setting fire to a United States flag in Seattle while protesting the Act's passage. In each case, the respective appellees moved to dismiss the flag-burning charge on the ground that the Act, both on its face and as applied, violates the First Amendment. Both the United States District Court for the Western District of Washington, 731 F.Supp. 415 (1990), and the United States District Court for the District of Columbia, 731 F.Supp. 1123 (1990), following Johnson, supra, held the Act unconstitutional as applied to appellees and dismissed the charges. ^[1] The United States appealed both decisions directly to this Court pursuant to 18 U.S.C. § 700(d) (1982 ed., Supp. I). ^[2] We noted probable jurisdiction and consolidated the two cases. 494 U.S. 1063, 110 S.Ct. 1779, 108 L.Ed.2d 780 (1990).

Last Term in Johnson, we held that a Texas statute criminalizing the desecration of venerated objects, including the United States flag, was unconstitutional as applied to an individual who had set such a flag on fire during a political demonstration. The Texas statute provided that "[a] person commits an offense if he intentionally or knowingly desecrates . . . [a] national flag," where "desecrate" 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." Tex. Penal Code Ann. § 42.09 (1989). We first held that Johnson's flag-burning was "conduct 'sufficiently imbued with elements of communication' to implicate the First Amendment." 491 U.S., at 406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (citation omitted). We next considered and rejected the State's contention that, under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), we ought to apply the deferential standard with which we have reviewed Government regulations of conduct containing both speech and nonspeech elements where "the governmental interest is unrelated to the suppression of free expression." Id., at 377, 88 S.Ct., at 1679. We reasoned that the State's asserted interest "in preserving the flag as a symbol of nationhood and national unity," was an interest "related 'to the suppression of free expression' within the meaning of O'Brien " 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, 109 S.Ct., at 2543. We therefore subjected the statute to " 'the most exacting scrutiny,' " 491 U.S., at 412, 109 S.Ct., at 2543, quoting Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988), and we concluded that the State's asserted interests could not justify the infringement on the demonstrator's First Amendment rights.

After our decision in Johnson, Congress passed the Flag Protection Act of 1989. ^[3] The Act provides 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." 18 U.S.C. § 700 (1988 ed., Supp. I).

The Government concedes in these cases, as it must, that appellees' flag burning constituted expressive conduct, Brief for United States 28; see Johnson, 491 U.S., at 405-406, 109 S.Ct., at 2540, but invites us to reconsider our rejection in Johnson of the claim that flag burning as a mode of expression, like obscenity or "fighting words," does not enjoy the full protection of the First Amendment. Cf. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). This we decline to do. ^[4] The only remaining question is whether the Flag Protection Act is sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe appellees' expressive conduct.

The Government contends that the Flag Protection Act is constitutional because, unlike the statute addressed in Johnson, the Act does not target expressive conduct on the basis of the content of its message. The Government asserts an interest in "protect[ing] the physical integrity of the flag under all circumstances" in order to safeguard the flag's identity " 'as the unique and unalloyed symbol of the Nation.' " Brief for United States 28, 29. The Act proscribes conduct (other than disposal) that damages or mistreats a flag, without regard to the actor's motive, his intended message, or the likely effects of his conduct on onlookers. By contrast, the Texas statute expressly prohibited only those acts of physical flag desecration "that the actor knows will seriously offend" onlookers, and the former federal statute prohibited only those acts of desecration that "cas[t] contempt upon" the flag.

Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is "related 'to the suppression of free expression,' " 491 U.S., at 410, 109 S.Ct., at 2543, and concerned with the content of such expression. The Government's interest in protecting the "physical integ rity" of a privately owned flag ^[5] 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. ^[6] Ibid. Moreover, the precise language of the Act's prohibitions confirms Congress' interest in the communicative impact of flag destruction. The Act criminalizes the conduct of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag." 18 U.S.C. § 700(a)(1) (1988 ed., Supp. I). Each of the specified terms-with the possible exception of "burns"-unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's symbolic value. ^[7] And the explicit exemption in § 700(a)(2) for disposal of "worn or soiled" flags protects certain acts traditionally associated with patriotic respect for the flag. ^[8]

As we explained in Johnson, supra, at 416-417, 109 S.Ct., at 2546: "[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. Despite the Act's wider scope, its restriction on expression cannot be " 'justified without reference to the content of the regulated speech.' " Boos, 485 U.S., at 320, 108 S.Ct., at 1163 (emphasis omitted) (citation omitted); see Spence v. Washington, 418 U.S. 405, 414, nn. 8, 9, 94 S.Ct. 2727, 2732 nn. 8, 9, 41 L.Ed.2d 842 (1974) (State's interest in protecting flag's symbolic value is directly related to suppression of expression and thus O'Brien test is inapplicable even where statute declared "simply . . . that nothing may be affixed to or superimposed on a United States flag"). The Act therefore must be subjected to "the most exacting scrutiny," Boos, supra, at 321, 108 S.Ct., at 1164, and for the reasons stated in Johnson, 491 U.S., at 413-415, 109 S.Ct., at 2543, the Government's interest cannot justify its infringement on First Amendment rights. We decline the Government's invitation to reassess this conclusion in light of Congress' recent recognition of a purported "national consensus" favoring a prohibition on flag burning. Brief for United States 27. 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.

" 'National unity as an end which officials may foster by persuasion and example is not in question.' " Johnson, supra, at 418, 109 S.Ct., at 2547, quoting West Virginia Board of Education v. Barnette, 319 U.S. 624, 640, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943). Government may create national symbols, promote them, and encourage their respectful treatment. ^[9] But the Flag Protection Act of 1989 goes well beyond this by criminally proscribing expressive conduct because of its likely communicative impact.

We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, see Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), vulgar repudiations of the draft, see Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), and scurrilous caricatures, see Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). "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." Johnson, supra, at 414, 109 S.Ct., at 2545. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering. The judgments of the District Courts are

Affirmed.

Justice STEVENS, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice O'CONNOR join, dissenting.

Notes

1. The Seattle appellees were also charged with causing willful injury to federal property in violation of 18 U.S.C. §§ 1361 and 1362. This charge remains pending before the District Court, and nothing in today's decision affects the constitutionality of this prosecution. See n. 5, infra.
2. "(1) An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order issued by a United States district court ruling upon the constitutionality of subsection (a).
3. The Act replaced the then-existing federal flag-burning statute, which Congress perceived might be unconstitutional in light of Johnson. Former 18 U.S.C. § 700(a) prohibited "knowingly cast[ing] contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it."
4. We deal here with concededly political speech and have no occasion to pass on the validity of laws regulating commercial exploitation of the image of the United States flag. See Texas v. Johnson, 491 U.S. 397, 415-416, n. 10, 109 S.Ct. 2533, 2546 n. 10, 105 L.Ed.2d 342 (1989); cf. Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907).
5. Today's decision does not affect the extent to which the Government's interest in protecting publicly owned flags might justify special measures on their behalf. See Spence v. Washington, 418 U.S. 405, 408-409, 94 S.Ct. 2727, 2729-30, 41 L.Ed.2d 842 (1974); Johnson, supra, at 412-413, n. 8, 109 S.Ct., at 2544, n. 8.
6. Aside from the flag's association with particular ideals, at some irreducible level the flag is emblematic of the Nation as a sovereign entity. The Government's amici assert that it has a legitimate nonspeech-related interest in safeguarding this "eminently practical legal aspect of the flag, as an incident of sovereignty." Brief for the Speaker and Leadership Group of the U.S. House of Representatives as Amicus Curiae 25. This interest has firm historical roots: "While the symbolic role of the flag is now well-established, the flag was an important incident of sovereignty before it was used for symbolic purposes by patriots and others. When the nation's founders first determined to adopt a national flag, they intended to serve specific functions relating to our status as a sovereign nation." Id., at 9; see id., at 5 (noting "flag's 'historic function' for such sovereign purposes as marking 'our national presence in schools, public buildings, battleships and airplanes' ") (citation omitted).
7. For example, "defile" is defined as "to make filthy; to corrupt the purity or perfection of; to rob of chastity; to make ceremonially unclean; tarnish, dishonor." Webster's Third New International Dictionary 592 (1976). "Trample" is defined as "to tread heavily so as to bruise, crush, or injure; to inflict injury or destruction: have a contemptuous or ruthless attitude." Id., at 2425.
8. The Act also does not prohibit flying a flag in a storm or other conduct that threatens the physical integrity of the flag, albeit in an indirect manner unlikely to communicate disrespect.
9. See, e.g., 36 U.S.C. §§ 173-177 (suggesting manner in which flag ought to be displayed).