Simone Lawson
The topic of flag burning in the United States and its place within the constitution has been a highly debated issue for decades. While some view flag burning as a form of political expression protected by the First Amendment, others argue that it is an offensive act that deserves to be outlawed. The Supreme Court has affirmed that flag burning is constitutionally protected free speech, but Congress has repeatedly attempted to pass amendments to prohibit it. This ongoing debate highlights the complexities of balancing free speech and respect for national symbols in a democratic society.
| Characteristics | Values |
|---|---|
| Burning the US flag as a form of protest | Protected by the First Amendment as a form of symbolic speech and expression |
| Public opinion | 49% think it should be illegal, 34% think it should be legal, 56% support a Flag Desecration Amendment |
| Legislative attempts to ban flag burning | The Flag Desecration Amendment has been proposed in Congress several times but has not passed the Senate |
| Supreme Court rulings | The Supreme Court has ruled that flag burning is constitutionally protected free speech and has overturned flag protection laws as unconstitutional |
| Impact on freedom of speech | Outlawing flag burning would limit freedom of speech; the Supreme Court has affirmed the right to desecrate the flag as a form of political expression |
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What You'll Learn
The Supreme Court ruled flag burning is protected under the First Amendment
The debate surrounding flag burning in the United States has been a long-standing and controversial issue. While many consider it a desecration of a national symbol, others argue that it is a form of symbolic speech and political expression protected by the First Amendment. This debate has resulted in several court cases and legislative attempts to prohibit or allow flag burning.
One notable case is Texas v. Johnson (1989), where the Supreme Court ruled in a 5-4 decision that burning the American flag was protected expression under the First Amendment. Gregory Lee Johnson, a protester who burned the flag at the Republican National Convention in Dallas in 1984, was initially convicted under a Texas law prohibiting flag desecration. However, the Supreme Court overturned his conviction, sparking outrage from President George H.W. Bush and Congress.
In response to the Texas v. Johnson decision, Congress passed the Flag Protection Act of 1989, making it a federal crime to desecrate the American flag. However, this law was short-lived as the Supreme Court struck it down in United States v. Eichman (1990), again ruling 5-4 that flag burning was constitutionally protected free speech. Justice William Brennan, joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy, wrote, "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
The debate over flag burning continued, with Congress making several attempts to pass a constitutional amendment that would explicitly allow them to prohibit flag desecration. While the House of Representatives repeatedly passed such an amendment with the required two-thirds majority, it consistently failed to achieve the necessary super-majority vote in the Senate. As of 2006, the most recent attempt to pass this amendment fell short by just one vote in the Senate.
While the Supreme Court has ruled that flag burning is protected by the First Amendment, the issue remains divisive. Opponents of flag burning view it as an offensive act that deserves to be outlawed, while supporters argue that prohibiting it would limit free speech and the expression of political and social ideas. The debate highlights the complex balance between protecting national symbols and upholding the principles of free expression enshrined in the First Amendment.
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The Flag Protection Act of 1989
The debate surrounding flag desecration and the First Amendment continues to be a contentious issue in the United States. While some argue that burning the flag is an offensive gesture that should be outlawed, others maintain that prohibiting such acts would limit freedom of speech. Despite several attempts by Congress to amend the Constitution to prohibit flag desecration, these efforts have repeatedly failed to attain the required supermajority in the Senate.
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Texas v. Johnson: The Supreme Court overturns state law
The case of Texas v. Johnson dates back to an incident in 1984, when Gregory Lee Johnson burned a flag at the Republican National Convention in Dallas. Johnson was convicted under a Texas statute that prohibited flag desecration. However, Johnson appealed his conviction, arguing that his actions were protected by the First Amendment, which guarantees freedom of speech.
The case eventually made its way to the Supreme Court, which ruled in Johnson's favour in 1989. The Court held that the Texas statute, which criminalized flag desecration, was an unconstitutional restriction on freedom of speech. The Court reasoned that the government may not prohibit the expression of an idea, even if it is offensive or disagreeable to society. The Court also emphasized that the government cannot prescribe a set of approved messages or viewpoints associated with a symbol, such as the flag.
The Court's decision in Texas v. Johnson set a precedent that invalidated similar flag-desecration laws across the country. In response, Congress passed the Flag Protection Act of 1989, which was also struck down by the Supreme Court in 1990 as unconstitutional. The Court reaffirmed its commitment to protecting freedom of speech, even when it involves controversial acts like flag burning.
The Texas v. Johnson case remains controversial, and there have been ongoing debates and attempts to amend the Constitution to prohibit flag desecration. While some view flag burning as an offensive act that deserves to be outlawed, others argue that prohibiting it would limit the principle of free speech, which is symbolized by the American flag. The Supreme Court's ruling in Texas v. Johnson underscores the Court's role in upholding the First Amendment and protecting the right to expressive conduct, even when it may be seen as offensive by some.
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United States v. Eichman: The Supreme Court upholds Texas v. Johnson
In 1989, the Supreme Court of the United States ruled in Texas v. Johnson that a Texas statute criminalizing flag desecration was unconstitutional. The ruling was based on the First Amendment, which protects freedom of speech and expression. In response, Congress passed the Flag Protection Act of 1989, which criminalized the desecration of the United States flag.
United States v. Eichman (1990) was a case that challenged the constitutionality of the Flag Protection Act of 1989. The case was heard by the Supreme Court and, in a 5-4 decision, the Court ruled that the Flag Protection Act of 1989 was unconstitutional and violated the First Amendment. The majority opinion, written by Justice William J. Brennan Jr., stated that the government may not prohibit the expression of an idea simply because it is offensive or disagreeable. The Court upheld the ruling in Texas v. Johnson and reaffirmed that flag burning is constitutionally protected free speech.
The decision in United States v. Eichman was controversial, and some justices dissented. Chief Justice William Rehnquist, joined by Justices John Paul Stevens, Sandra Day O'Connor, and Byron White, disagreed with the majority opinion. Rehnquist argued that flag burning is not simply an idea or point of view but an act of desecration that should be criminalized. Despite the controversy, the Supreme Court upheld the right to burn the American flag as a form of protected expression under the First Amendment.
The battle over flag desecration and free speech has a long history in the United States. As early as 1907, in Halter v. Nebraska, the Court upheld a state law prohibiting the use of flag labels on beer bottles. In 1968, Congress approved the Federal Flag Desecration Law, making it illegal to publicly mutilate or deface the US flag. However, in cases like Spence v. Washington (1974) and Texas v. Johnson (1989), the Court moved towards protecting flag desecration as a form of political expression. Despite multiple attempts by Congress to pass a Flag Desecration Amendment, it has not been successful in doing so due to the lack of a super-majority in the Senate.
The United States v. Eichman case is significant as it reaffirmed the right to free speech and expression, even when such expression may be offensive or disagreeable to some. It highlights the ongoing debate between protecting national symbols and upholding the principles of free speech and expression, as guaranteed by the First Amendment.
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Proposed amendments to the Constitution to prohibit flag burning
The Flag Desecration Amendment, also known as the Flag-Burning Amendment, is a proposed addition to the US Constitution that would allow Congress to prohibit and provide punishment for the physical "desecration" of the US flag. The concept of flag desecration has sparked a heated debate over protecting a national symbol, preserving free speech, and upholding the liberty said to be represented by that national symbol.
The debate over flag burning and desecration has a long history in the US. In 1907, the Court in Halter v. Nebraska upheld a state law that prohibited two businessmen from selling beer with flag labels on the bottles. In 1968, Congress approved the Federal Flag Desecration Law, which made it illegal to "knowingly cast contempt" upon any US flag through public mutilation, defacing, defiling, burning, or trampling. However, in 1974, the Court held in Spence v. Washington that a person couldn't be convicted for using tape to put a peace sign on an American flag, indicating that such an act was protected expression under the First Amendment.
In 1984, Gregory Lee Johnson burned a flag at the Republican National Convention in Dallas, leading to the controversial Texas v. Johnson case. On June 21, 1989, the United States Supreme Court, in a 5-4 decision, upheld the rights of protesters to burn the American flag, citing symbolic speech and political expression protected under the First Amendment. In response, Congress passed the Flag Protection Act of 1989, but this was struck down as unconstitutional in 1990 in United States v. Eichman, again by a 5-4 vote.
From 1995 to 2005, the proposed Flag Desecration Amendment was approved biennially by the two-thirds majority necessary in the US House of Representatives. However, it consistently failed to achieve the required super-majority vote in the US Senate, falling short by four votes on two occasions. The amendment would have empowered Congress to enact statutes criminalizing the burning or other "desecration" of the US flag in public protests.
Proponents of legislation to proscribe flag burning argue that it is a very offensive gesture that deserves to be outlawed. Opponents argue that granting Congress the power to prohibit flag burning would limit the principle of freedom of speech, protected under the First Amendment. Polls conducted in 2005 and 2006 showed a shift in public opinion, with a majority supporting a flag desecration amendment, while a 2020 poll indicated a more divided view, with 49% thinking flag burning should be illegal and 34% saying it should be legal.
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Frequently asked questions
Yes. The First Amendment protects the freedom of speech, which includes symbolic actions. In Texas v. Johnson, the Court held that the First Amendment protects flag burning because it is a form of "expressive conduct".
No. In 1968, Congress approved the Federal Flag Desecration Law, which made it illegal to "knowingly cast contempt" on the US flag through acts such as burning. This law was overturned by the Supreme Court in 1989, which deemed it an unconstitutional restriction of public expression.
Yes. There have been several attempts to amend the Constitution to prohibit flag desecration. The most recent attempt in 2006 failed by one vote in the Senate.
Those against flag burning argue that it is an offensive gesture that deserves to be outlawed. Those in favour of permitting flag burning argue that giving Congress the power to ban it would limit the principle of free speech.
