Flag Protection: A Brief History and Summary of Supreme Court Decisions and Proposed Constitutional Amendments

John R. Luckey
Legislative Attorney

This report is divided into two parts. The first gives a brief history of the flag protection issue,  from the enactment of the Flag Protection Act in 1968 through current consideration of a  constitutional amendment. The second part briefly summarizes the two decisions of the United  States Supreme Court, Texas v. Johnson and United States v. Eichman, that struck down the state and federal flag protection statutes as applied in the context punishing expressive conduct.  

In 1968, Congress reacted to the numerous public flag burnings in protest of the Vietnam conflict  by passing the first federal flag protection act of general applicability. For the next 20 years, the  lower courts upheld the constitutionality of this statute and the Supreme Court declined to review  these decisions. However, in Texas v. Johnson, the majority of the Court held that a conviction for  flag desecration under a Texas statute was inconsistent with the First Amendment and affirmed a  decision of the Texas Court of Criminal Appeals that barred punishment for burning the flag as  part of a public demonstration.  

In response to Johnson, Congress passed the Flag Protection Act of 1989. But, in reviewing this  act in United States v. Eichman, the Supreme Court expressly declined the invitation to reconsider Johnson and its rejection of the contention that flag-burning, like obscenity or “fighting words,”  does not enjoy the full protection of the First Amendment as a mode of expression. The only  question not addressed in Johnson, and therefore the only question the majority felt necessary to  address, was “whether the Flag Protection Act is sufficiently distinct from the Texas statute that it  may constitutionally be applied to proscribe appellees’ expressive conduct.” The majority of the  Court held that it was not.  

Many Members of Congress see continued tension between “free speech” decisions of the  Supreme Court, which protect flag desecration as expressive conduct under the First Amendment,  and the symbolic importance of the United States flag. Consequently, every Congress that has  convened since those decisions were issued has considered proposals that would permit  punishment of those who engage in flag desecration. In six of the last eight Congresses, the  House passed proposed constitutional amendments which would have authorized Congress to  enact legislation to protect the flag from physical desecration. In the 104^th Congress, the Senate  considered a “flag” amendment, but came three votes short of passing it. In the 106^th Congress,  S.J.Res. 14 failed, by a vote of 63-37, to receive the necessary two-thirds vote in the Senate. In  the 109^th Congress, S.J.Res. 12 failed by a vote of 66 to 34 (one vote short of the necessary two- thirds required for passage). There were no “flag” amendment votes in the Senate in the 105^th,  107^th, 108^th, 110^th, or 111^th Congresses.  

In the 112^th Congress, an amendment to the Constitution of the United States to prohibit  desecration of the flag has been introduced in both the House and the Senate. H.J.Res. 13  proposes an amendment to the Constitution of the United States which would authorize Congress to prohibit the physical desecration of the flag of the United States. An identical bill, S.J.Res. 19,  has been introduced in the Senate


Date of Report: February 7, 2012
Number of Pages: 9
Order Number: 95-709
Price: $29.95

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