Public Papers - 1989 - October
Statement on the Flag Protection Act of 1989
On June 21, 1989, the Supreme Court in Texas v. Johnson held unconstitutional a Texas statute prohibiting flag desecration. The Court reasoned that, under the principles of the First Amendment, a State could punish a person who desecrates the flag to communicate a message only if the State had a compelling reason to do so. The Court held that the Government's interest in preserving the symbolic value of the flag is not compelling.
After a careful study of the Court's opinion, the Department of Justice concluded that the only way to ensure protection of the flag is through a constitutional amendment. Pursuant to that advice, I urged the adoption of such an amendment.
After several months of debate about how best to protect the flag from desecration, the Congress has forwarded to me H.R. 2978. The bill provides for a prison term of up to 1 year for anyone who ``knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon'' any United States flag.
While I commend the intentions of those who voted for this bill, I have serious doubts that it can withstand Supreme Court review. The Supreme Court has held that the Government's interest in preserving the flag as a symbol can never be compelling enough to justify prohibiting flag desecration that is intended to express a message. Since that is precisely the target of this bill's prohibition, I suspect that any subsequent court challenge will reach a similar conclusion.
Nevertheless, because this bill is intended to achieve our mutual goal of protecting our Nation's greatest symbol, and its constitutionality must ultimately be decided by the courts, I have decided to allow it to become law without my signature. I remain convinced, however, that a constitutional amendment is the only way to ensure that our flag is protected from desecration.
The White House,
October 26, 1989.
Note: H.R. 2978 became law on October 28 and was assigned Public Law No. 101 - 131.