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March 5, 1990


June L. Green, United States District Judge.

The opinion of the court was delivered by: GREEN

This matter is before the Court on the defendants' Motion to Dismiss the informations filed against Shawn D. Eichman, David Blalock and Scott W. Tyler based on the alleged unconstitutionality of the Flag Protection Act of 1989 under which the defendants were charged. Upon consideration of the defendants' motion, the government's opposition, memoranda filed by the United States Senate and the Speaker and Leadership Group of the House as amici curiae opposing the defendants' motion, evidence presented at the February 22, 1990 hearing on the motion, and for the reasons set forth below, the Court finds the Flag Protection Act of 1989 to be unconstitutional and, therefore, grants the defendants' motion to dismiss.

 I. Facts

 A. Defendants' Actions

 Although the defendants refused to enter a stipulated statement of facts with the government, the facts in this matter are largely undisputed. Shortly before noon on October 30, 1989, defendants Shawn Eichman, David Blalock and Scott Tyler set ablaze several United States Flags on the east steps of the United States Capitol during a political demonstration. The defendants, together with one Gregory Lee Johnson, were protesting various aspects of United States domestic and foreign policy. *fn1" But they were united in their objection to the newly enacted Flag Protection Act of 1989. *fn2"

 The defendants and Mr. Johnson were arrested for violating the Flag Protection Act of 1989, disorderly conduct and demonstrating without a permit. *fn3" The United States Attorney for the District of Columbia later charged the three defendants with violation of the Act. Mr. Johnson, whose flag did not ignite, was not charged. *fn4"

 B. The Flag Protection Act of 1989

 The Flag Protection Act of 1989 (hereinafter "Act" or "Flag Protection Act") amends 18 U.S.C. Section 700. The Act provides that "(w)hoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both." Section 2(a)(1), [amending 18 U.S.C. Section 700(a)(1)]. However, the Act "does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled." Section 2(a)(2), [amending 18 U.S.C. Section 700(a)(2)]. The statute defines "flag of the United States" as "any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed." Section 2(b), [amending 18 U.S.C. Section 700(b)].

 C. Texas v. Johnson

 Legislative history reveals that the Flag Protection Act was a congressional response to the Supreme Court's recent opinion in Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989). H.R. Rep. No. 101-123, 101st Cong., 1st Sess. 2 (1989); S. Rep. No. 101-152, 101st Cong., 1st Sess. 4 (1989). See generally, Hearings on Measures to Protect the Physical Integrity of the American Flag, Hearings Before the Comm. on the Judiciary, United States Senate, 101st Cong., 1st Sess. 1-754; Statutory and Constitutional Responses to the Supreme Court Decision in Texas v. Johnson, Hearings Before the Subcomm. on Civil and Constitutional Rights of the Comm. on the Judiciary, House of Representatives, 101st Cong., 1st Sess. 1-572 (1989). In Johnson, the United States Supreme Court overturned the conviction of Gregory Lee Johnson *fn5" under a Texas statute which prohibited the desecration of venerated objects, including the United States Flag. The statute under which Mr. Johnson was charged made it a crime in Texas to "deface, damage or otherwise physically mistreat in a way the actor knows will seriously offend one or more persons likely to observe or discover his actions." Johnson, 109 S. Ct. at 2537, n.1. The winds of fortune blowing in the opposite direction, Mr. Johnson managed to ignite and burn a United States flag on the steps of City Hall in Dallas, Texas during the Republican National Convention. The flag-burning was the culmination of a demonstration against Reagan administration policies.

 The Supreme Court declared the Texas statute unconstitutional as applied to Mr. Johnson. As a threshold matter, the Court determined that Mr. Johnson, in burning the United States flag, had engaged in expressive conduct protected by the First Amendment. Justice Brennan, writing for the majority, declared eloquently that the flag is "pregnant with expressive conduct". Id. at 2540. Mr. Johnson's decision to burn this potent symbol on the eve of Ronald Reagan's renomination, at the doorsteps of the city hosting the Republican Convention was, the Court concluded, "sufficiently imbued with the elements of communication," to implicate the First Amendment." Johnson, at 2540, quoting Spence v. Washington, 418 U.S. 405, 409, 41 L. Ed. 2d 842, 94 S. Ct. 2727 (1974).

 The Court next considered what standard to apply in scrutinizing Texas' prohibition of this protected conduct. The Court held that if the interests advanced by Texas were related to the suppression of expression, then the more lenient test of expressive conduct set forth in United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968) would not apply. Rather than establishing only an important or substantial government interest in regulating the nonexpressive element of the conduct under the O'Brien test, the state would have to show a compelling interest to justify the regulation.

 The Court found that Texas' asserted interest in preventing breaches of the peace was not implicated on the record because there was no evidence that Johnson's burning of the flag actually caused a breach of the peace. Johnson, 109 S. Ct. at 2542. However, the Court held that the state's asserted interest in preserving the flag as a symbol of nationhood and national unity was related to the suppression of expression. Id. Relying on its prior holding in Spence, the Court concluded that a state interest in preserving the flag's symbolic value "blossom(ed) only when a person's treatment of the flag communicates some message", regardless of whether the conduct prohibited was affixing a peace symbol to the flag or flag-burning. Id.

 Finally, the Court held that Texas' interest in preserving the symbolic value of the flag was not sufficiently compelling to justify the conviction of the defendant. Id. 109 S. Ct. at 2542-2548. In attempting to prohibit only those flag-burnings which caused serious offense, the Court found Texas had violated "a bedrock principle underlying the First Amendment . . . that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Id. at 2544. The Court rejected Texas' attempt to "foster its own view of the flag by prohibiting expressive conduct relating to it." Id. at 2545. For, as the Court stated, to allow flag-burning only when it does not endanger the flag's symbolic role, would be to permit the Government to "prescribe what shall be orthodox" in violation of the First Amendment. Id. at 2546. The Court also refused to accord the flag any special constitutional significance, finding "no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American Flag alone." Id.

 II. Discussion

 The defendants assert that Johnson controls the disposition of this case and that the same result must follow here. They also challenge the constitutionality of the Act on its face, claiming that it is impermissibly viewpoint-based, vague and overbroad. They argue that ...

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