History of the Flag Protection

Before the Civil War, the few references to protecting the American flag centered mostly on the flag in its official capacity, such as flying at the bow of an American vessel or above a government building or American embassy.

  1878 Congress considers and rejects a proposal to ban the use of the flag for commercial advertising. The measure failed because party leaders feared they wouldn't be able to use the flag in their political campaigns.
1896 Prominent use of the flag highlights a heated McKinley-Bryan presidential campaign that occasionally sparked violence.
1897 The American Flag Association forms to promote flag protection legislation. Other groups heavily involved in flag protection measures include the Daughters of the American Revolution and the Ku Klux Klan.
1897 Pennsylvania passes a law making it a crime to "damage or destroy" the flag. Eventually, every other state except Alaska and Wyoming would follow suit. Congress rejects more flag-protection proposals.
1907 Halter v. Nebraska. Supreme Court determines that a Nebraska law forbidding the use of the flag for advertising merchandise — in this case, beer — doesn't violate the Constitution. The court, however, considered the case only on property rights and not in regard to the First Amendment.
1917 Congress responds to wartime passions by making the public mutilation of a flag a misdemeanor in the District of Columbia.
1917 Flag protection groups push the Civilian Flag Code, a guideline for displaying the flag and punishing its desecration. The American Legion drafts its Flag Code five years later.
1925 Gitlow v. New York. Supreme Court determines for the first time that the First Amendment applies to state laws as well as to federal ones.
  1931 Stromberg v. California. Supreme Court rules that a state law prohibiting the display of a red flag violated the First Amendment. The court said that posting such a flag is symbolic speech and the peaceful display as part of "peaceful and orderly opposition" to government policies is protected.
  1940 Minersville School District v. Gobitis. Supreme Court rules that requiring Jehovah's Witness students to salute the flag and recite the Pledge of Allegiance despite their religious objections did not violate their constitutional rights.
  1942 Congress passes a joint resolution to "provide an authoritative guide to those civilians who desire to use the flag correctly." The measure carried no penalties for those who violate the guidelines.
  1943 West Virginia Board of Education v. Barnette. Overruling its own 1940 Minersville decision, Supreme Court strikes down laws requiring compulsory flag salutes and recitals of the Pledge of Allegiance by American school children.
  1943 Taylor v. Mississippi. Supreme Court determines that the state cannot punish individuals for encouraging students and others who attempt "to create an attitude of stubborn refusal to salute, honor, or respect the national and state flags and governments."
  1968 Congress imposes criminal penalties nationwide on anyone who "knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it."
  1969 Street v. New York. The Supreme Court overturns the conviction of veteran and Bronze Star honoree Sydney Street who burned his flag in protest after learning that activist James Meredith had been shot.
  1974 Smith v. Goguen. The Supreme Court overturns the conviction of a teenager who wore a flag patch on his pants, determining that a Massachusetts law prohibiting "contemptuous" use of the flag was vague.
  1974 Spence v. Washington. The Supreme Court overturns the conviction of a man who taped a peace symbol onto his flag.
  1989 Texas v. Johnson. The Supreme Court rules that burning the American flag is a constitutionally protected form of free speech.
  1989 Congress passes the Flag Protection Act. The act punishes anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any U.S. flag …"
  1990 U.S. v. Eichman. The Supreme Court invalidates the Flag Protection Act of 1989. The Court finds that the statute violates free speech.
  1995 After the House voted 312-120 for a flag amendment, the measure fails in the Senate by three votes.
  1997 The House approves flag amendment with a 310-114 vote.
  1998 Flag-amendment proposal dies in the Senate as Senate leaders fail to get unanimous consent to bring the proposal to the floor.
  1999 Reps. Randy "Duke" Cunningham, R-Calif., John Murtha, D-Pa., and John Sweeney, R-N.Y., introduce a proposal to amend the Constitution to allow Congress to enact flag-protection laws. House approves bill, 305-124.
  2000 Flag amendment falls four votes short of passage in the Senate, 63-37.