… despite the famous U. S. Supreme Court decision of Texas v. Johnson, in which the court held the Texas law against flag-burning is an unconstitutional restriction on First Amendment freedom of speech.
While doing some research on Texas law for another reason today, I ran across Texas Penal Code section 42.11, which not only makes it illegal to “damage, deface, mutilate or burn” the American flag, but also the Texas state flag.
The Supreme Court Johnson decision, which actually addressed a previous version of the Texas law, was announced on June 21, 1989. The current version of the Texas statute became effective barely more than two months later (on September 1, 1989).
Apparently, those recalcitrant Texans didn’t get the message.
Of course, they are not alone … 47 of the 50 states have current flag protection laws, even though the U. S. Supreme Court also invalidated the federal flag-burning law which was enacted in response to the Johnson decision. That law, the 1989 Flag Protection Act, was held unconstitutional in the case of United States v. Eichman. Since then, all congressional efforts to pass a new flag law have failed.
Two states — Alaska and Wyoming — have no flag protection laws. Wisconsin has such a law, but its own Supreme Court declared the law unconstitutional in 1998 and subsequent attempts to enact a new one have also failed.
Of the remaining states, 29 (including Texas) have laws protecting the American flag and their own state flags, while 11 have laws which protect only the American flag. Two states (Utah and New Jersey) have laws which protect the American flag and any state flag (thereby displaying a rare degree of solicitude for other states).
Five states (Florida, Georgia, Louisiana, Mississippi & South Carolina) have laws protecting the American flag, their own state flags and the flags of the Confederacy. Talk about unrepentant!
I personally agree with those who think flag-burning as a form of protest is protected by the First Amendment. Nevertheless, that belief doesn’t prevent me from getting a little thrill every time I see what may be the greatest moment in Major League Baseball history:
April 25, 1976. Dodger Stadium. Rick Monday. If you’ve never seen this, check it out.
A good website summarizing the state flag laws is the First Amendment Center‘s site at:
The U. S. Supreme Court decision Texas v. Johnson, 491 U. S. 397 (1989), is available at:
The Wikipedia article on the Johnson case is at:
The decision in United States v. Eichman, 496 U.S. 310 (1990), is available at:
The Wikipedia article on the Eichman case is at:
Texas Statutes on flag destruction (Penal Code section 42.11) and the punishment for violating that section (Penal Code section 12.21) can be found on the Texas law statutes page at: