Many Members of Congress see continued tension between "free speech" decisions of the Supreme Court, which protect flag desecration as expressive conduct under the First Amendment, and the symbolic significance of the United States flag. Consequently, every Congress that has convened since those decisions were issued has considered measures to permit the punishment of those who engage in flag desecration. This report is divided into two parts. The first gives a brief history of the flag protection issue, from the enactment of the Flag Protection Act in 1968 through current consideration of a constitutional amendment. The second part briefly summarizes the two decisions of the United States Supreme Court, Texas v. Johnson and United States v. Eichman , that struck down the state and federal flag protection statutes as applied in the context punishing expressive conduct. History

In 1968, in the midst of the Vietnam conflict, Congress enacted the first Federal Flag Protection Act of general applicability. The law was occasioned by the numerous public flag burnings in protest of the war. For the next 20 years, the lower courts upheld the constitutionality of the federal statute and the Supreme Court declined to review these decisions. In six of the last eight Congresses, the House passed proposed constitutional amendments which would have authorized Congress to enact legislation to protect the flag from physical desecration. In the 104 th Congress, the Senate considered a "flag" amendment, but came three votes short of passing it. In the 106 th Congress, S.J.Res. 14 failed, by a vote of 63-37, to receive the necessary two-thirds vote in the Senate. In the 109 th Congress, S.J.Res. 12 failed by a vote of 66 to 34 (one vote short of the necessary two-thirds required for passage). In the 112 th Congress, an amendment to the Constitution of the United States to prohibit desecration of the flag has been introduced in both the House and the Senate. H.J.Res. 13 proposes an amendment to the Constitution of the United States which would authorize the Congress to prohibit the physical desecration of the flag of the United States. On Flag Day of 2011, Senator Hatch introduced an identical bill, S.J.Res. 19 , in the Senate. Texas v. Johnson

In Texas v. Johnson , the majority of the Court held that Johnson's conviction for flag desecration, under a Texas statute, was inconsistent with the First Amendment and affirmed the decision of the Texas Court of Criminal Appeals that held that Johnson could not be punished for burning the flag as part of a public demonstration. United States v. Eichman

The Court, in reviewing the Flag Protection Act of 1989 in United States v. Eichman , expressly declined the invitation to reconsider Johnson and its rejection of the contention that flag-burning as a mode of expression, like obscenity or "fighting words," does not enjoy the full protection of the First Amendment. The only question not addressed in Johnson , and therefore the only question the majority felt necessary to address, was "whether the Flag Protection Act is sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe appellees' expressive conduct."
This report is divided into two parts. The first gives a brief history of the flag protection issue, from the enactment of the Flag Protection Act in 1968 through current consideration of a constitutional amendment. The second part briefly summarizes the two decisions of the United States Supreme Court, Texas v. Johnson and United States v. Eichman, that struck down the state and federal flag protection statutes as applied in the context punishing expressive conduct.
In 1968, Congress reacted to the numerous public flag burnings in protest of the Vietnam conflict by passing the first federal flag protection act of general applicability. For the next 20 years, the lower courts upheld the constitutionality of this statute and the Supreme Court declined to review these decisions. However, in Texas v. Johnson, the majority of the Court held that a conviction for flag desecration under a Texas statute was inconsistent with the First Amendment and affirmed a decision of the Texas Court of Criminal Appeals that barred punishment for burning the flag as part of a public demonstration.
In response to Johnson, Congress passed the Flag Protection Act of 1989. But, in reviewing this act in United States v. Eichman, the Supreme Court expressly declined the invitation to reconsider Johnson and its rejection of the contention that flag-burning, like obscenity or "fighting words," does not enjoy the full protection of the First Amendment as a mode of expression. The only question not addressed in Johnson, and therefore the only question the majority felt necessary to address, was "whether the Flag Protection Act is sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe appellees' expressive conduct." The majority of the Court held that it was not.
Many Members of Congress see continued tension between "free speech" decisions of the Supreme Court, which protect flag desecration as expressive conduct under the First Amendment, and the symbolic importance of the United States flag. Consequently, every Congress that has convened since those decisions were issued has considered proposals that would permit punishment of those who engage in flag desecration. In six of the last eight Congresses, the House passed proposed constitutional amendments which would have authorized Congress to enact legislation to protect the flag from physical desecration. In the 104th Congress, the Senate considered a "flag" amendment, but came three votes short of passing it. In the 106th Congress, S.J.Res. 14 failed, by a vote of 63-37, to receive the necessary two-thirds vote in the Senate. In the 109th Congress, S.J.Res. 12 failed by a vote of 66 to 34 (one vote short of the necessary two-thirds required for passage). There were no "flag" amendment votes in the Senate in the 105th, 107th, 108th, 110th, or 111th Congresses.
In the 112th Congress, an amendment to the Constitution of the United States to prohibit desecration of the flag has been introduced in both the House and the Senate. H.J.Res. 13 proposes an amendment to the Constitution of the United States which would authorize Congress to prohibit the physical desecration of the flag of the United States. An identical bill, S.J.Res. 19, has been introduced in the Senate.