Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, June 12, 1990 TAG: 9006120152
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: The New York Times
DATELINE: WASHINGTON LENGTH: Medium
The 5-4 decision led immediately to renewed calls in Congress for a constitutional amendment making it possible to prosecute people who burn flags.
It appeared inevitable that the political debate that erupted a year ago, when the court struck down a Texas flag-burning law by the same vote and with the same constitutional analysis, would resume in the months leading to the elections this fall.
Justice William J. Brennan Jr. wrote the majority opinion Monday, as he did in Texas vs. Johnson last June.
He said that despite some differences, the Federal Flag Protection Act of 1989 "suffers from the same fundamental flaw" as the Texas law, that of "suppressing expression," and added, "Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering."
His opinion was joined by Justices Thurgood Marshall, Harry A. Blackmun, Antonin Scalia and Anthony M. Kennedy.
Justice John Paul Stevens filed a dissenting opinion that was joined by Chief Justice William H. Rehnquist and by Justices Byron R. White and Sandra Day O'Connor.
The vote, cutting across the court's usual ideological divisions, was the same as in the Texas case.
The decision in two combined cases, U.S. vs. Eichman, No. 89-1433, and U.S. vs. Haggerty, No. 89-1434, upheld rulings in federal district courts here and in Seattle earlier this year.
Federal District Judge June L. Green in the District of Columbia and Federal District Judge Barbara J. Rothstein in Seattle dismissed prosecutions of protesters who burned American flags, ruling that the new federal law was unconstitutional under the principles the court had declared in the Texas case.
The federal law was enacted last year in the aftermath of the Texas ruling. Its sponsors hoped to deflect the momentum for a constitutional amendment by providing a statutory means of protecting the flag.
The Texas law referred to the offensive message conveyed by desecration of the flag.
The sponsors of the federal law said they hoped to overcome the court's objections by outlawing the physical mutilation of the flag while omitting any reference to the flag-burner's message or motive.
The Flag Protection Act says, "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 the effort to differentiate the federal law from the Texas statute failed.
Brennan said that while the federal law "contains no explicit content-based limitation on the scope of prohibited conduct," its structure and logic made clear that the government's interest lay not in the flag's physical protection but in its symbolic meaning and "in the communicative impact of flag destruction."
Brennan noted that the law "does not prohibit flying a flag in a storm or other conduct that threatens the physical integrity of the flag."
by CNB