United States v. Eichman (1990) is the Supreme Court case that struck down the federal Flag Protection Act of 1989, holding that the government cannot criminalize flag desecration because flag burning is symbolic political expression protected by the First Amendment's free speech clause.
United States v. Eichman (1990) is the Supreme Court's answer to Congress trying to get around an earlier ruling. In 1989, the Court held in Texas v. Johnson that burning the American flag as political protest was protected symbolic speech. Congress responded almost immediately by passing the Flag Protection Act of 1989, a federal law making flag desecration a crime. Protesters burned flags specifically to challenge the new law, and in Eichman the Court struck it down too.
The core logic is the same in both cases. The government's real reason for punishing flag burning is that the message offends people, and the First Amendment does not let the government suppress expression just because the ideas behind it are unpopular. Eichman matters in AP Gov because it shows that this rule applies to the federal government, not just the states, and that the Court will protect symbolic speech even when Congress and a large majority of the public disagree.
Eichman lives in Unit 3 (Civil Liberties and Civil Rights) under Topic 3.2, the First Amendment. The First Amendment topics in Unit 3 all turn on the same tension the CED highlights, which is the government's power to make law versus an individual's constitutional rights. Eichman is one of the cleanest examples of that tension you can cite. Congress passed a law with overwhelming public support, and the Court still struck it down to protect an individual's expression. That makes it a go-to case for arguments about judicial review protecting unpopular minorities, the scope of symbolic speech, and the limits of legislative power. It appeared as the stimulus on a 2022 released Short Answer Question, so the College Board has tested it directly.
Keep studying AP® Gov Unit 3
Flag Protection Act of 1989 (Unit 3)
This is the exact law Eichman struck down. Congress passed it as a direct response to Texas v. Johnson, which makes the pair a perfect example of the back-and-forth between the legislative branch and the Court over civil liberties.
Cohen v. California (1971) (Unit 3)
Cohen protected a jacket reading a profane anti-draft message. Same principle as Eichman, just in a different format. The government cannot punish expression simply because the message is offensive to others.
Clear and present danger (Unit 3)
This is the standard the Court uses when speech actually can be restricted. Eichman shows the flip side. Burning a flag may anger people, but anger is not a clear and present danger, so the speech stays protected.
Citizens United v. Federal Election Commission (Unit 3)
Both cases expand what counts as protected First Amendment expression beyond literal spoken words. Eichman protects symbolic acts; Citizens United protects political spending. Together they show how broadly the Court reads 'speech.'
Eichman showed up as a stimulus on the 2022 SAQ (Question 3), where you had to read an excerpt from the case and connect it to First Amendment principles. That is the typical job this case does on the exam. Expect to identify the constitutional clause at stake (free speech), explain the Court's reasoning (symbolic expression cannot be banned because it offends), and connect it to a required case like Texas v. Johnson or to broader ideas like judicial review checking Congress. In multiple choice, Eichman often appears in questions about symbolic speech or about how the Court responds when Congress tries to legislate around a ruling. Eichman itself is not one of the 15 required SCOTUS cases, but the College Board expects you to apply required-case reasoning to non-required cases exactly like this one.
These two cases are easy to blur because they reach the same conclusion one year apart. Texas v. Johnson (1989) struck down a state law against flag burning. Congress then passed the federal Flag Protection Act of 1989 to dodge that ruling, and United States v. Eichman (1990) struck down that federal law. Think of it as the sequel. Johnson set the rule for states, Eichman confirmed the rule binds the federal government too.
United States v. Eichman (1990) struck down the federal Flag Protection Act of 1989 as a violation of the First Amendment's free speech clause.
The case confirmed that flag burning is protected symbolic speech, extending the rule from Texas v. Johnson (1989) to federal law.
The Court's reasoning is that the government cannot ban expression just because the message offends people or is deeply unpopular.
Eichman is a strong example of judicial review acting as a check on Congress, since the Court struck down a law passed specifically to override a prior ruling.
On the AP exam, Eichman appeared as the stimulus on a 2022 SAQ, so be ready to read its language and connect it to First Amendment free speech principles.
Eichman (1990) held that the federal Flag Protection Act of 1989 violated the First Amendment. The Court ruled that flag burning is symbolic political expression and the government cannot criminalize it just because the message is offensive.
Yes. After Texas v. Johnson (1989) blocked state bans and Eichman (1990) blocked the federal ban, flag burning as political protest is constitutionally protected. A new law banning it would face the same fate unless a constitutional amendment passed.
Texas v. Johnson (1989) struck down a Texas state law against flag desecration. Eichman (1990) struck down the federal Flag Protection Act that Congress passed in response to Johnson. Same principle, but Eichman applied it to the federal government.
No, it is not one of the 15 required cases, but it appeared as an SAQ stimulus on the 2022 exam. The AP exam regularly asks you to apply First Amendment reasoning to non-required cases like Eichman.
Because the law's real purpose was to suppress a message. The Court held that the government's interest in protecting the flag as a symbol cannot justify punishing people for the political ideas their protest expresses.
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