This Is Why It’s Legal to Burn the American Flag

3 minute read
Flag Protection Act
William Kunstler second from left, discusses the Supreme Court ruling to declare the Flag Protection Act of 1989 unconstitutional at a press conference on June 11, 1990 in New York, Kunstler and David Cole, second from right, represented Shawn Eichman, right, a defendant in the case, and Joey Johnson, a defendant in a similar case in 1989.Marty Lederhandler—AP Images
By Lily Rothman

It was shortly before the Fourth of July in 1989—two centuries after the Constitution of the United States took effect—when the Supreme Court declared that the government could not stop citizens from desecrating the nation’s flag.

“The patriotic mind recoils,” TIME’s Walter Isaacson commented in the weeks that followed the decision. “Reverence for the flag is ingrained in every schoolchild who has quailed at the thought of letting it touch the ground, in every citizen moved by pictures of it being raised at Iwo Jima or planted on the moon, in every veteran who has ever heard taps played at the end of a Memorial Day parade, in every gold-star mother who treasures a neatly folded emblem of her family’s supreme sacrifice.”

Yet, he continued, that was precisely the reason why the court, in the case Texas v. Johnson, declared that federal and state laws that protect the flag are in violation of free-speech protections. The flag is so revered because it represents the land of the free, and that freedom includes the ability to use or abuse that flag in protest.

Almost immediately after the ruling was made, President Bush proposed a solution: a constitutional amendment that would exempt flag-desecration as protected speech. But the legislative branch struck first and passed the Flag Protection Act of 1989, which made it criminal to desecrate the flag, regardless of motive. Protesters responded quickly by burning flags, in an attempt to get the issue back to the Supreme Court. Almost exactly a year after Texas v. Johnson, their wish came true. In United States v. Eichman, which was decided exactly 25 years ago, on June 11, 1990, the Supreme Court once again ruled that burning the flag was an example of constitutionally protected free speech.

Further attempts to protect the flag with an amendment were batted about in the years that followed, but they never went anywhere.

As Isaacson pointed out in returning to the issue the week after the Eichman decision came down, the 1990s fight over flag-burning came at a time when the nation was seemingly less polarized:

Paradoxically, the willingness to scale back First Amendment permissiveness comes when the divisions in American society seem to be at a 25-year low. In the 1960s the battle between flag wavers and flag burners represented a traumatic schism over the Vietnam War and national morality in general. Even in those incendiary times, there was never a serious effort to pass a constitutional amendment. Now the issue has become, so to speak, less burning. With the ideological battles at home in abeyance and challenges from abroad less severe, it would seem that the nation would feel more secure about the glorious discomforts that come from tolerating forms of free speech — even when they are as offensive as the antics of flag burners or the lyrics of 2 Live Crew or the photographs of Robert Mapplethorpe.

Read the full story, here in the TIME Vault: Hiding in the Flag

See Ruth Bader Ginsburg Grow from Toddler to Supreme Court Justice

Ruth Bader Ginsburg Supreme Court Justice Young Photos
August 2, 1935 Childhood photograph of Ruth Bader taken when she was two years old.Collection of the Supreme Court of the United States
Ruth Bader Ginsburg Supreme Court Justice Young Photos
1948 Ruth Bader delivers a sermon as camp Rabbi at the age of 15, at Che-Na-Wah camp in Minerva, N.Y.Collection of the Supreme Court of the United States
Ruth Bader Ginsburg Supreme Court Justice Young Photos
December, 1953 Studio photograph of Ruth Bader, taken in Dec. 1953 when she was a Senior at Cornell University.Collection of the Supreme Court of the United States
Ruth Bader Ginsburg Supreme Court Justice Young Photos
Fall, 1954 Martin D. Ginsburg and Ruth Bader Ginsburg taken in the fall while Martin Ginsburg served in the Army, before being drafted, stationed at Artillery Village in Fort Sill, Okla. Martin Ginsburg was drafted into the Army in 1954.Collection of the Supreme Court of the United States
Ruth Bader Ginsburg Supreme Court Justice Young Photos
Summer 1958 Ruth Bader Ginsburg and Martin Ginsburg play with their three-year old daughter, Jane, in her bedroom at Martin's parents' home in Rockville Centre, N.YCollection of the Supreme Court of the United States
Ruth Bader Ginsburg Supreme Court Justice Young Photos
Fall 1980 Judge Ruth Bader Ginsburg during her first term as a United States Circuit Judge to the U.S. Court of Appeals for the District of Columbia.Collection of the Supreme Court of the United States
Ruth Bader Ginsburg Supreme Court Justice Young Photos
December, 1980 Ruth Bader Ginsburg, her husband Martin Ginsburg, and their children James and Jane in a boat off the shore of St. Thomas in the Virgin Islands.Collection of the Supreme Court of the United States
Ruth Bader Ginsburg with her husband at the Greenbrier, circa 1972
1972 Ruth Bader Ginsburg with her husband Martin at the Greenbrier resort in White Sulphur Springs, W.V.Collection of the Supreme Court of the United States
Ruth Bader Ginsburg Supreme Court Justice Young Photos
Oct. 1, 1993 Informal portrait of Justice Ruth Bader Ginsburg standing before the mantle in the Justices' Dining Room in Washington.Collection of the Supreme Court of the United States
Ruth Bader Ginsburg Supreme Court Justice Young Photos
August 10, 1993 Justice Ruth Bader Ginsburg is sworn in as an Associate Justice of the Supreme Court. From left to right stand President Bill Clinton, Justice Ruth Bader Ginsburg, Martin Ginsburg, and Chief Justice William Rehnquist.Collection of the Supreme Court of the United States
Ruth Bader Ginsburg Supreme Court Justice Young Photos
Official portrait of Justice Ruth Bader GinsburgSteve Petteway—Collection of the Supreme Court of the United States

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Write to Lily Rothman at lily.rothman@time.com