Flag Burning Is it more important to protect the icons of our country, or to ensure the right to extremely offensive expressions? The issue of flag burning asks America just that question: Should America tolerate, or condemn? Flag burning does seem to be the ultimate act of symbolic protest used to express dissension against the American Government. There is simply no questioning the fact that flag burning offends people, but the controversy of flag burning tests the dominion of the First Amendment to the Constitution. The First Amendment states very simply, Congress shall make no law abridging the freedom of speech or of the press.” (Harvin ) It is widely debatable whether or not the American flag is an object that requires the refuge of legislation.
History of the Flag The American flag played no significant role in American life until the Civil War. It was displayed only on federal government buildings, forts, and American ships at sea. It would have been unthinkable to fly an American flag at a private home or public school. It simply was not done. Only the outbreak of the Civil War made the American Flag transform into an object of public adoration.
The flag suddenly started appearing everywhere from colleges, hotels, stores, to private homes. But the flag’s growing popularity was not accompanied at first by any sense that is should be regarded as a sacred object or vestige( Goldstein). History of Flag Burning The Supreme Court has repeatedly upheld the right to desecrate an American flag. However, various legislatures have tried numerous times to criminalize the act of flag burning.
Despite their efforts, flag burning is still legal, at least for the time being. Still, the legal future of flag burning is very much in question. Although it does not deal specifically with flag desecration, the 1931 Supreme Court case of Stromberg v. California was the first to test the extent of the First Amendment as it applies to displaying the flag.
Stromberg was arrested, charged, and convicted for displaying a red flag. The Supreme Court set the precedent and ruled that because similar to flag burning, the flag is being used in an expressive manner (Goldstein). The first epidemic of flag desecration in American history occurred during the late Sixties and early Seventies. Americans were becoming more and more disgusted with the U.S.
involvement in Vietnam. This era is commonly known for its radical political activism. Setting the American flag ablaze was a common way for protesters to decry the Vietnam conflict (Mullins). Protesters soon realized that flag burning was an extremely effective way to express many of their anti-American views.
The second Supreme Court case that dealt with using the flag in an expressive manner occurred with the 1974 case of Spence v. Washington. This case was very similar to the earlier case of Stromberg v. California.
The case involved a protester who was arrested and convicted for displaying an American flag with an attached peace sign. Just the same as the Stromberg case, the conviction was overturned and deemed unconstitutional because the action was expressive (Goldstein). The earlier Spence and Stromberg cases both deal with the expressive use of the American flag, but no flag burning itself The first and most notable Supreme Court case to tackle the controversy of flag burning itself was the case of Texas v. Johnson. In 1984, Gregory Lee Johnson participated in a rally dubbed the ‘Republican War Chest Tour,’ which protested U.S. foreign policy.
The demonstration climaxed as protesters chanted and Johnson doused the American flag with kerosene and set it on fire (Harvin). This was perhaps the most famous flag ever burned in U.S. history. Johnson was arrested and charged with violating the Texas statue 42.09 Desecration of a Venerated Object.
The law states in part, “A person commits an offense if he intentionally or knowingly defaces. . a state or national flag.” Johnson was fined $2,000 and was sentenced to one year in state prison (Goldstein). Johnson appealed the decision all the way to the U.S. Supreme Court. Five years later, in 1989, the Supreme Court overturned the conviction by the narrowest of margins, five to four.
The ruling stated that “free speech does not end at the spoken or written word.” (Goldstein). After the controversial ruling in Texas v. Johnson, United States lawmakers wasted little time in passing the Federal Flag Protection Act of 1989. The Flag Protection Act was very similar to the earlier unconstitutional Texas statue.
The only difference was that the federal law applied specifically to the American flag, and described a much broader range of offenses (Goldstein). The Flag Protection Act met its first constitutional challenge very quickly. The 1990 Supreme Court case of United States v. Eichman brought the issue to the forefront once again. The government’s main arguments in favor of the Flag Protection Act was that it did not limit the act of flag desecration based specifically on its expressive content, and that the government has an interest in preserving the physical well-being of the flag. The Supreme Court did not agree and ultimately found the Flag Protection Act unconstitutional, The court disregarded the U.S.
government’s argument and ruled nevertheless that the underlying intent of the government was to suppress free speech (Goldstein). In 1990 Doris Lessin, a leader of the Revolutionary Communist Party, was arrested after burning a flag and yelling insults at bystanders during an anti-America demonstration. Violence subsequently followed and Lessin was charged with aggravated disorderly conduct. She was later charged with a more severe felony, inciting to violence, and ultimately was convicted. The fact Lessin was jailed for flag burning points to a loophole in the current law.
Currently, flag desecration can be illegal under some circumstances (Cozic). Today, flag burning which is communicative in nature is still constitutional. Because the Supreme Court has gained a liberal seat since the Johnson and Eichman rulings, it does not appear that the Supreme Court will change the constitutionality of flag desecration any time soon. Throughout the 1990’s, Washington politicians have tried repeatedly to circumvent the issue of constitutionality by pushing a proposed flag desecration amendment to amend the constitution itself. Several versions of the amendment have easily passed in the House of Representatives, only to fail or stall in the Senate. An overwhelming majority of senators and representatives have announced their support for the bill, however other issues have pushed the proposal to the wayside.
Amending the constitution is a difficult and lengthy process, and over 99% of proposed amendments fail (Fullwood). Currently, the proposed amendment was stalled in the Senate, and did not clear the Senate in 1998. The issue of flag burning and desecration is one of the most controversial tests of the right to free speech. The U.S.
Supreme Court has repeatedly ruled in favor of the constitutionality of flag burning, but politicians have tried endlessly to change that. One thing seems certain. The only way that flag burning will become illegal is through an amendment to the Constitution. To Burn The issue of flag burning has polarized American politics for over a decade. There is little middle ground with this issue. Americans are generally either for or against the proposed Flag Desecration Amendment.
Opponents of the proposed Flag Desecration Amendment are quite outspoken. The opponents argue that proposal would be the first to set limitations on the First Amendment. Furthermore, they argue that the entire thinking of the proposed amendment is backwards because the proposal places more value in the icon of freedom, than in freedom itself (Smolla 1989). Not to Burn It could reasonably be predicted that the proposed amendment would divide Americans directly at political party lines, this is not the case. The Republican Party proudly sponsors the proposed Flag Desecration Amendment and it is no surprise that almost every Republican in Congress has proclaimed their support for the proposed amendment (Citizen’s Flag Alliance).
The Republican Party has always been synonymous with limited interpretation of the First Amendment and a push for more laws in recent American politics. The more surprising reality is that many moderate Democrats have crossed party lines and announced their support for the proposed amendment (Citizen’s Flag Alliance). The main opposition to the proposed amendment comes from the liberal Democrats and …
