Flag Desecration Amendment

In 1989, the Supreme Court of the United States overturned all of these statutes by a 5–4 vote in the case Texas v. Johnson as unconstitutional restrictions of public expression.

In 1990, the Supreme Court reaffirmed Johnson by the same 5–4 majority in United States v. Eichman declaring that flag burning was constitutionally protected free speech.

[8] In both cases, William J. Brennan Jr. wrote the majority opinion, joined by Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy (Kennedy also authored a separate concurrence in Johnson), and the dissenters in both cases were then-Chief Justice William Rehnquist (who authored a dissent in Johnson), and justices John Paul Stevens (who authored dissents in both cases), Byron White and Sandra Day O'Connor.

The decisions were controversial and have prompted Congress to consider the only remaining legal avenue to enact flag protection statutes—a constitutional amendment.

From 1995 to 2005, beginning with the 104th Congress, the proposed amendment was approved biennially by the two-thirds majority necessary in the U.S. House of Representatives, but it consistently failed to achieve the same constitutionally required super-majority vote in the U.S. Senate.

[9] The full text of the amendment (passed several times by the U.S. House of Representatives) is as follows: The Congress shall have power to prohibit the physical desecration of the flag of the United States.This proposed amendment would empower Congress to enact statutes criminalizing the burning or other "desecration" of the United States flag in a public protest.

Opponents maintain that giving Congress such power would essentially limit the principle of freedom of speech, enshrined in the First Amendment to the United States Constitution and symbolized by the flag itself.

The theories underlying these First Amendment principles include: a robust national discourse about political and social ideas; individual self-realization; the search for truth; and speech as a "safety valve".

There Justice William J. Brennan Jr. noted that the "principal function of free speech under our system of government is to invite dispute; it may indeed best serve its high purpose when it induces condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

The Republican nay votes were Bob Bennett (UT), Lincoln Chafee (RI), and Mitch McConnell (KY).

The vote on Senator Richard Durbin's alternative amendment, which would have given Congress the power to ban flag desecration intended to intimidate or breach peace on federal land, was 36–64.

These questions would necessarily await the interpretative role of the courts, and such a process would likely require several years for the resolution of each issue.

The amendment might be interpreted as being limited to flags that meet the exact specifications for the United States flag laid out in federal law, as in the above image; see Flag of the United States for further details regarding these specifications.
It remains an open question whether flags such as this one, which contains corporate logos in place of the fifty stars, would fall under the amendment.