The Flag Protection Act of 1989 was the GOP's first attempt to overturn Texas V. Johnson. (This was the 1989 Supreme Court decision that upheld flag burning as protected symbolic political expression.) Two simultaneous attempts to outlaw flag burning happened at this time: the first Flag Protection amendment was introduced, and was voted down; the Flag Protection Act was passed by both houses of Congress. Then-President Bush allowed the bill to become law without his signature, as an expression of his preference for a Constitutional amendment. The actual "Flag Protection Act" was not new legislation, but an amendment of the existing U.S. Code.Warren S. Apel
On October 30th 1989, the day the bill went into effect, hundreds of people burned American flags in protest. Shawn Eichman and Mark Haggerty were among those charged with violating the law. The Justice Department admits that the law is unconstitutional under Texas V. Johnson, but plans to prosecute anyway, hoping to get the court to reverse its decision. Federal District courts in both cases dismiss charges, calling the Flag Protection Act unconstitutional. The Justice Department appeals to the Supreme Court.
In June 1990 the Supreme Court in U.S. v. Haggerty and U.S. v. Eichman upheld the district court rulings that the Flag Protection Act is unconstitutional. This law is still part of the U.S. Code, although it is not likely to be enforced unless a Flag Protection Amendment passes. I have reproduced the Act verbatim from the U.S. Code (disclaimer: this is a copy, and not the official version. I'm pretty confident it's correct.)
18 USC Sec. 700
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 33 - EMBLEMS, INSIGNIA, AND NAMES
Sec. 700. Desecration of the flag of the United States; penalties
(a)(1) 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.
(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled.
(b) As used in this section, the term ''flag of the United States'' means any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.
(c) Nothing in this section shall be construed as indicating an intent on the part of Congress to deprive any State, territory, possession, or the Commonwealth of Puerto Rico of jurisdiction over any offense over which it would have jurisdiction in the absence of this section.
- (1) An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order issued by a United States district court ruling upon the constitutionality of subsection (a).
- (2) The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal and advance on the docket and expedite to the greatest extent possible.
(Added Pub. L. 90-381, Sec. 1, July 5, 1968, 82 Stat. 291; amended Pub. L. 101-131, Sec. 2, 3, Oct. 28, 1989, 103 Stat. 777.)
AMENDMENTS1989 - Subsec. (a). Pub. L. 101-131, Sec. 2(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: ''Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both.''
Subsec. (b). Pub. L. 101-131, Sec. 2(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: ''The term 'flag of the United States' as used in this section, shall include any flag, standard colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, color, or ensign of the United States of America, or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, standards, colors, or ensign of the United States of America.''
Subsec. (d). Pub. L. 101-131, Sec. 3, added subsec. (d).
SHORT TITLE OF 1989 AMENDMENT
Section 1 of Pub. L. 101-131 provided that: ''This Act (amending this section) may be cited as the 'Flag Protection Act of 1989'.''