Lots of debate on flag burning


The United States 90th Congress enacted Public Law 90-381, better known as the “Flag Protection Act” of 1968. It was an  expansion to nationwide applicability of a 1947 law previously restricted only to the District of Columbia.

The text of the law reads: “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.”

But, in 1989, the 101st Congress amended that statute in response to the United States Supreme Court’s ruling that year in the case of Texas vs. Johnson. On June 11, 1990, the Supreme Court in the case of  United States vs. Eichman struck down the Flag Protection Act, ruling again that the government’s interest in preserving the flag as a symbol does not outweigh the individual’s First Amendment right to disparage that symbol through expressive conduct.

The “Protection Act of 2005” was a proposed United States federal law introduced in the United States Senate at the 109th United States Congress on Oct. 24, 2005. The law would have prohibited burning or otherwise destroying and damaging the U.S. flag with the primary purpose of intimidation or inciting immediate violence or for the act of terrorism.  It called for a punishment of no more that one year in prison and a fine of no more than $100,000; unless that flag was property of the U.S. government, in which case the penalty would be a fine of not  more than $250,000, not more than two years in prison, or both.

Although the Supreme Court ruled in Texas vs. Johnson (1989) that flag-burning was protected by the First Amendment, the bill was intended, according to the New York Times, to take the issue back to the Supreme Court which was more conservative in 2005 than it was in 1989 in order to overturn that earlier decision.

Since the law was not passed or even considered by the United States Congress, its constitutionality was never challenged in the Supreme Court.