Flag Protection: A Brief History and Summary of Recent Supreme Court Decisions and Proposed Constitutional Amendment [Updated June 28, 2006] [open pdf - 47KB]
From the Summary: "Many Members of Congress see continued tension between 'free speech' decisions of the Supreme Court, which protect flag desecration as expressive conduct under the First Amendment, and the symbolic importance of the United States flag. Consequently, every Congress that has convened since those decisions were issued has considered proposals that would permit punishment of those who engage in flag desecration. The 106th Congress narrowly failed to send a constitutional amendment to allow punishment of flag desecration to the states. In the 107th and 108th Congresses, such proposals were passed by the House. This report is divided into two parts. The first gives a brief history of the flag protection issue, from the enactment of the Flag Protection Act in 1968 through current consideration of a constitutional amendment. The second part briefly summarizes the two decisions of the United States Supreme Court, 'Texas v. Johnson' and 'United States v. Eichman', that struck down the state and federal flag protection statutes as applied in the context punishing expressive conduct. […] Congress, recognizing that 'Johnson' and 'Eichman' had left little hope of an anti-desecration statute being upheld, has considered in each Congress subsequent to these decisions a constitutional amendment to empower Congress to protect the physical integrity of the flag. In the 109th Congress, H.J.Res. 5, H.J.Res.10, and S.J.Res. 12 would authorize Congress to prohibit and penalize desecration of the flag of the United States. H.J.Res. 5 would also authorize the states to prohibit and penalize desecration. On June 22, 2005, the House passed H.J.Res. 10 by a vote of 286 to 130. On June 27, 2006, the Senate failed to pass S.J.Res. 12 by a vote of 66 to 34 (one vote short of the necessary two-thirds required for passage)."
CRS Report for Congress, 95-709