Can you be prosecuted in Maryland for burning or defacing a flag, or is it protected free speech?

Plain-English summary

Two delegates asked the Attorney General in 1990 whether Maryland's flag law could survive after the U.S. Supreme Court, in United States v. Eichman, struck down the federal Flag Protection Act as applied to expressive flag burning. Maryland had just revised its own statute, Article 27, §83, which made it a crime to intentionally mutilate, deface, burn, trample, or otherwise use a flag both in a manner intended to incite an imminent breach of the peace and under circumstances likely to incite one.

The Attorney General concluded the Maryland law was constitutional, and explained why it stood on different footing than the federal act. Eichman, and Texas v. Johnson the year before, held that flag burning done to express a view gets full First Amendment protection, and that a law aimed at preserving the flag as a national symbol is a content-based restriction that must survive the most demanding scrutiny. But those cases did not immunize flag destruction that amounts to a breach of the peace. Maryland's revised law was deliberately written as a breach-of-the-peace statute: it punished flag destruction only when it was both intended to and likely to incite imminent lawless action, borrowing the Supreme Court's own standard from Brandenburg v. Ohio. So the opinion said the law could be upheld on either of two theories. It regulated conduct (inciting imminent violence), not the message, and served a state interest unrelated to suppressing expression; and even if it were viewed as reaching speech, it reached only speech that Brandenburg placed outside First Amendment protection.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Maryland's criminal statutes have since been recodified out of Article 27 into the Criminal Law Article, so the current flag provision carries a different section number, and First Amendment doctrine has continued to develop. The opinion was also the Attorney General's assessment, not a court ruling on this particular statute. Treat the analysis and the specific section number here as the law as it stood in 1990, and check current statutes and case law before relying on it.

Common questions

Could you be prosecuted in Maryland for burning or defacing a flag?
Only in narrow circumstances, under this 1990 opinion. Maryland's revised law did not punish flag desecration as a form of protest. It reached flag destruction only when it was both intended to, and likely to, incite an imminent breach of the peace.

Didn't the Supreme Court say flag burning is protected speech?
Yes, expressive flag burning is protected. In Texas v. Johnson and United States v. Eichman, the Court struck down flag-desecration bans that were aimed at preserving the flag as a national symbol. But, as this opinion pointed out, those decisions left room for a state to punish flag destruction that amounts to a breach of the peace.

Why was Maryland's law constitutional when the federal one was not?
Because of what each law targeted. The federal Flag Protection Act was aimed at the message, protecting the flag as a symbol, which is a content-based restriction. Maryland's law was aimed at conduct, flag destruction that incites imminent violence, and its purpose was unrelated to suppressing any viewpoint. The Maryland statute even wrote in the Supreme Court's "imminent lawless action" test from Brandenburg v. Ohio.

What is a "breach of the peace" statute?
It is a law that regulates conduct likely to provoke immediate violence or disorder, rather than the content of a message. The opinion explained that such a law is judged under a more lenient First Amendment standard, drawn from United States v. O'Brien, because its justification is unrelated to suppressing expression.

Background and statutory framework

The question grew directly out of two Supreme Court flag-burning decisions. In Texas v. Johnson (1989) and then United States v. Eichman (1990), the Court reaffirmed that expressive flag destruction is subject to full First Amendment protection and that a statute reaching such expression must pass the most exacting scrutiny, justified by a compelling interest unrelated to the content of the speech. The Court found the federal Flag Protection Act failed that test as applied, because its interest, preserving the flag as a symbol of the nation, was tied to the message. Crucially, though, the Court declined to apply the more deferential O'Brien standard (used for laws regulating conduct with an incidental effect on speech) precisely because the federal interest was content-based, and it took care to say it was not suggesting the First Amendment forbids a state from preventing imminent lawless action.

That distinction is what the opinion built on. It read the earlier flag cases, including Johnson and Spence v. Washington, to suggest that a flag-destruction statute could be constitutionally applied to facts amounting to a breach of the peace, and it pointed to the Eighth Circuit's decision in United States v. Cary, which upheld a flag-burning conviction where the burning occurred in a context of violence and the government's interest in preventing further breaches of the peace was unrelated to suppressing expression. In that setting, the court applied the more lenient O'Brien standard rather than the exacting scrutiny of Johnson and Eichman.

Maryland's 1990 revision, Chapters 420 and 422 of the Laws of Maryland (revising Article 27, §83), was drafted with these decisions in view, to function as a breach-of-the-peace statute. The House Judiciary Committee amendments expressly incorporated the "incitement to imminent lawless action" test of Brandenburg v. Ohio as a substantive element of the offense, so a person could be convicted only if the state proved the flag destruction was both intended to and likely to produce imminent lawless action. On that basis, the opinion concluded the statute passed muster on either of two theories: as a regulation of conduct (breach of the peace) supported by an interest unrelated to expression, or, even if viewed as reaching expression, as reaching only conduct Brandenburg holds unprotected. Its bottom line was that the constitutionality of the 1990 flag law was not controlled by Eichman and that Article 27, §83 did not violate the First Amendment.

Citations and references

Statutes:

• Article 27, §83 of the Maryland Code, the 1990 flag law being reviewed
• Chapters 420 and 422 of the Laws of Maryland 1990, which enacted the revision

Cases:

• United States v. Eichman, 110 S.Ct. 2404 (1990), striking down the federal Flag Protection Act as applied to expressive flag burning
• Texas v. Johnson, 109 S.Ct. 2533 (1989), the earlier flag-burning decision
• United States v. O'Brien, 391 U.S. 367 (1968), the deferential standard for conduct with speech and non-speech elements
• Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the "imminent lawless action" test the Maryland statute incorporated
• United States v. Cary, 897 F.2d 917 (8th Cir. 1990), upholding a flag-burning conviction on breach-of-the-peace grounds
• Spence v. Washington, 418 U.S. 405 (1974); Smith v. Goguen, 415 U.S. 566 (1974); Street v. New York, 394 U.S. 576 (1969); and Cahn v. Long Island Vietnam Moratorium Committee, 418 U.S. 906 (1974), earlier flag desecration and misuse cases
• United States v. Eichman, 731 F. Supp. 1123, 1130 n.9 (D.D.C. 1990), and United States v. Haggerty, 731 F. Supp. 415, 422 n.8 (W.D. Wash. 1990), the district court decisions below
• Kime v. United States, 459 U.S. 949 (1982), quoted from Justice Brennan's dissent from denial of certiorari

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 147-151 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Criminal Law — Constitutional Law — Freedom of Speech — Maryland's Flag Protection Law is Constitutional

November 14, 1990

The Honorable Samuel I. Rosenberg
The Honorable Timothy Maloney
Maryland House of Delegates

 In light of the United States Supreme Court's decision in United States v. Eichman, 110 S.Ct. 2404 (1990), invalidating as applied the federal Flag Protection Act, you have requested our opinion on the constitutionality of the 1990 revision of Maryland's Flag Law, Article 27, §83 of the Maryland Code. That criminal statute now provides as follows:

          A person may not intentionally mutilate, deface, burn, trample upon, or otherwise use a flag:

          (1) In a manner intended to incite or produce an imminent breach of the peace; and

           (2) Under circumstances likely to incite or produce an imminent breach of the peace.

 For the reasons stated below, it is our opinion that, unlike the federal act, the Maryland law is a "breach of the peace" statute. As such, it seeks to regulate nonspeech activities and is justified by a sufficiently important governmental interest unrelated to the suppression of free expression. Moreover, even if Article 27, §83 were aimed at expression, it would pass muster under the First Amendment because it expressly proscribes only unlawful conduct not protected by the Constitution — flag destruction intended to incite imminent lawless action and likely to produce that action.

I

Analysis and Impact of Eichman

 In United States v. Eichman, the second Supreme Court flag burning decision in less than a year, the Court reaffirmed that "expressive" flag destruction was subject to full First Amendment protection. 110 S.Ct. at 2407. A statute prohibiting such expression was required to pass "the most exacting scrutiny," 110 S.Ct. at 2409, and must be justified by a compelling governmental interest unrelated to the content of the expression. 110 S.Ct. at 2408.1

 In concluding that the federal Flag Protection Act of 1989 could not be applied to expressive flag burning, the Court rejected the contention that the constitutionality of the statute had to be gauged under "the deferential standard" of United States v. O'Brien, 391 U.S. 367 (1968), governing regulation of conduct containing speech and non-speech elements where the governmental interest underlying the law was unrelated to the suppression of free expression. See 110 S.Ct. at 2407. The Court found that the governmental interest behind the Flag Protection Act — preserving the flag as a symbol of our nation and its ideals — was a justification rooted in the content of the regulated speech and, thus, was related to suppression of expression. 110 S.Ct. at 2407 and 2409. Nonetheless, it is apparent from a reading of Eichman and prior flag cases that the Court was not immunizing from government control flag destruction that amounted to breach of peace.

 Eichman did not involve a claim that the Flag Protection Act was unconstitutional on its face.2 Rather, the Court found the law unconstitutional "as applied" to expressive conduct that merited the "full protection of the First Amendment." 110 S.Ct. at 2407. Moreover, the restriction on expressive conduct imposed by the law was insufficiently justified. 110 S.Ct. at 2409.

 Prior Supreme Court flag cases, relied on in Eichman, have strongly suggested that a flag destruction statute could be constitutionally applied to facts amounting to a breach of peace and could be justified by the government's interest in preventing such misconduct. For example, in Texas v. Johnson, 109 S.Ct. 2533 (1989), the Court, in refusing to permit a prosecution for flag burning under a Texas statute, noted that "no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag." 109 S.Ct. at 2541.3 See also Spence v. Washington, 418 U.S. 405 (1974) (asserted state interest in preventing breach of peace rejected in flag misuse case because of lack of factual evidence).4

 Finally, a recent, well-reasoned decision of the United States Court of Appeals for the Eighth Circuit upheld a federal flag burning conviction on the ground that the law could be constitutionally applied to facts amounting to a breach of the peace. United States v. Cary, 897 F.2d 917 (8th Cir. 1990). In this case, the court emphasized that the defendant's flag burning actions occurred "in a context of violence" and involved the government's "important and substantial interest in protecting against further breaches of the peace." 897 F.2d at 926. This interest, the court wrote, was unrelated to the suppression of expression. 897 F.2d at 924. Thus, the constitutional question was resolved under the more lenient standard of O'Brien rather than "the exacting scrutiny" of Johnson (and Eichman).5

II

Analysis of the 1990 Maryland Law

 Chapters 420 and 422 of the Laws of Maryland 1990, the revision of Article 27, §83, were enacted by the General Assembly with an eye toward fashioning legislation that would pass constitutional muster as a breach of the peace statute.6 Legislative committees were unquestionably aware of the lower court decisions that led to United States v. Eichman. See letter of advice to Delegate David B. Shapiro on House Bill 503 (March 28, 1990) and letter of advice to Delegate Daniel M. Long on House Bill 503/Senate Bill 374 (March 5, 1990). In addition, House Judiciary Committee amendments to the legislation expressly incorporated the "incitement to imminent lawless action" test of Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), as a substantive element of the flag destruction offense.7

 Because the 1990 flag law was carefully crafted to punish only imminent breaches of the peace, we believe that it passes constitutional muster on two different theories. Examined under the more lenient standard of O'Brien and Cary, it seeks to regulate not expression but a particular type of conduct, breach of the peace, and is justified by the State's undoubted interest in preventing such violent or threatening behavior. Alternatively, even if the statute were viewed as aimed at speech or expression, it only proscribes conduct that Brandenburg holds to be outside the protection of the First Amendment — that is, imminent lawless action.

III

Conclusion

 In summary, the constitutionality of the 1990 flag law is not controlled by Eichman, but rather by other authorities that support the constitutionality of the measure. In our opinion, Article 27, §83 does not violate the First Amendment.

                                         J. Joseph Curran, Jr.
                                         Attorney General

                                         Robert A. Zamoch
                                         Assistant Attorney General

                                         Jack Schwartz
                                         Chief Counsel
                                           Opinions & Advice

1
Eichman was preceded by five flag desecration or misuse cases, in none of which the government prevailed or a conviction was upheld. See Texas v. Johnson, 109 S.Ct. 2533 (1989); Cahn v. Long Island Vietnam Moratorium Committee, 418 U.S. 906 (1974); Spence v. State of Washington, 418 U.S. 405 (1974); Smith v. Goguen, 415 U.S. 566 (1974); Street v. New York, 394 U.S. 576 (1969).

2
The defendants charged under the federal law originally challenged the law both as applied and on its face. The latter claim was not adjudicated. See United States v. Eichman, 731 F. Supp. 1123, 1130 n.9 (D.D.C. 1990); United States v. Haggerty, 731 F. Supp. 415, 422 n.8 (W.D. Wash. 1990).

3
The majority in Johnson also noted that: "We ... conclude that the State's interest in maintaining order is not implicated on these facts. The State need not worry that our holding will disable it from preserving the peace. We do not suggest that the First Amendment forbids a State to prevent 'imminent lawless action.'" 109 S.Ct. at 2542.

4
Justice Brennan, who wrote the Eichman and Johnson opinions, also emphasized in his dissent from the denial of certiorari in Kime v. United States, 459 U.S. 949 (1982), that the flag mutilation statute whose constitutionality the Court declined to address there was "neither an arson statute nor a breach-of-the-peace statute." 459 U.S. at 954.

5
The court noted that "[b]ecause the government's interest is unrelated to expression, we need not apply the incitement to imminent lawless action test of Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)." 897 F.2d at 925 n. 20.

6
In four separate advice letters, this office stated that a flag desecration statute that only punished breach of the peace would survive a constitutional challenge. Letter of advice to Delegate Samuel I. Rosenberg (August 11, 1989) [...]; letter of advice to Governor William Donald Schaefer [...] 1990) [...]; letter of advice to Delegate Daniel M. Long on House Bill 503/Senate Bill 374 (March 5, 1990); and letter of advice to Delegate David B. Shapiro on House Bill 503 (March 28, 1990).

7
Before the bill's passage in the House, this office noted in its March 28, 1990 letter of advice to Delegate David B. Shapiro that: "The proposed amendments to House Bill 503 convert the bill into breach-of-the-peace legislation and the language of the amendments was drafted with an eye on the Supreme Court's decision in Brandenburg v. Ohio, 395 U.S. 444 (1969) (The First Amendment does not prohibit a state from banning the advocacy of the use of force or of law violation 'where such advocacy is directed to inciting or promoting imminent lawless action and is likely to incite or produce such action.') Under this constitutional standard, which is incorporated into House Bill 503 as proposed for amendment, a person could be constitutionally convicted for burning or destroying a flag if the State meets its burden of showing these elements of 'imminent lawless action.'"