LBJ Signed a Bill to Ban Flag Burning On This Date

On July 5, 1968, President Lyndon B. Johnson signed the Flag Protection Act into law which established criminal penalties for burning, defacing, or trampling the U.S. flag. The law was eventually struck down by the U.S. Supreme Court as a violation of an individual’s First Amendment rights.

Why did it come up?

The earliest known instances of flag burning in the U.S. occurred just before the Civil War began in protest of President Abraham Lincoln’s refusal to accept the Confederacy’s secession. In the late 1800s states began enacting laws to protect the flag from desecration, and by 1932 all had done so.

Throughout the 1960s there was significant social unrest in the U.S. as protests related to the Vietnam War and civil rights movement raged throughout the country. Burning the U.S. flag ― which had been a rarity since the end of the Civil War ― became a popular way for protesters to signal their disapproval of America’s policies.

What did it do?

The Flag Protection Act of 1968 made it a crime to knowingly mutilate, deface, physically defile, burn, maintain on the floor or ground, or trample upon the U.S. flag punishable by a fine and up to one year imprisonment. It was an expansion of a law that’d previously applied only to the District of Columbia, and specified that it shouldn’t be interpreted as depriving states of the authority to enforce their own flag desecration laws or criminalizing proper flag disposal.

The bill contained a recognition of the constitutional questions it raised by clarifying that it could be appealed directly to the Supreme Court, and instructed the Court to expedite consideration of the appeal to the greatest extent possible.

What happened?

In 1989, the Supreme Court issued a landmark 5-4 ruling in Texas v. Johnson which struck down state flag desecration laws on the grounds that burning a U.S. flag is a form of symbolic speech protected by the First Amendment. The majority opinion was written by Justice William Brennan, Jr. and Justices Thurgood Marshall, Antonin Scalia, and Harry Blackmun ― while Justice Anthony Kennedy wrote the following in concurrence:

“Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”

In response, Congress passed the Flag Protection Act of 1989 which tried to rework the federal flag desecration law so that it’d withstand another challenge before the nation’s highest court. On the day the revised law took effect flag burning protests were held at the U.S. Capitol, which led to arrests and a subsequent legal challenge. Again, the Supreme Court issued a 5-4 ruling in U.S. v. Eichman, which struck down the federal law banning flag desecration.

Since then, Congress has tried on several occasions to advance a constitutional amendment to prohibit flag desecration ― the House passed the Flag Desecration Amendment in each Congress from 1995-2005 only to see it stall in the Senate.

In 2006, the proposed amendment finally got a Senate vote only to fall one vote shy of passage 66-34 in part because of then-Senate Majority Whip Mitch McConnell’s (R-KY) opposition. Given that McConnell is now majority leader, it’s unlikely that the current version of the Flag Desecration Amendment will get a vote on the Senate floor.

— Eric Revell

(Photo Credit: USMC Photo by Pfc. Cory Polom / Public Domain)