The Rehnquist Court (1986–2005)

First Amendment

What did the Rehnquist Court rule with respect to the burning of the American flag as a First Amendment right?

In two decisions, Texas v. Johnson (1989) and U.S. v. Eichman (1990), a sharply divided U.S. Supreme Court ruled 5–4 that individuals have a First Amendment right to burn the American flag as a form of political dissent. In Texas v. Johnson, the Court overturned a Texas law prohibiting flag desecration. In Eichman, the Court invalidated the Flag Protection Act of 1990. The Court majority reasoned that the flag burners were engaging in a form of symbolic speech and expressive conduct even though most would find such expression reprehensible.

Justice William Brennan wrote the majority opinions in both cases. He stated in oft-quoted language in the Texas v. Johnson decision: “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 it finds it offensive or disagreeable.” In response to the decisions, Congress introduced several amendments to the Constitution to prohibit the burning of the flag. Several times, the amendments passed the House of Representatives, but they failed to garner the necessary two-thirds majority in the Senate. Most recently, in June 2006, a flag protection amendment passed the House but failed in the Senate by a single vote. The amendment needed 67 votes in the Senate (the necessary two-thirds as required by the Constitution) but only received 66.


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