Jonah Patel
The topic of flag desecration, particularly the burning of the American flag, has been a contentious issue in the United States, sparking debates about national symbolism, free speech, and the limits of constitutional protection. The First Amendment guarantees freedom of speech, but the interpretation of this freedom is often disputed, especially in cases of flag desecration as a form of political expression. While some view flag burning as a disrespectful act, others argue that it is a form of symbolic speech protected by the Constitution. The Supreme Court has ruled in favor of the latter, but Congress has repeatedly attempted to pass laws and amendments to prohibit flag desecration, with the most recent effort failing by a single vote in the Senate in 2006.
| Characteristics | Values |
|---|---|
| Name of Amendment | Flag Desecration Amendment (also referred to as the Flag-Burning Amendment) |
| What it would do | Allow the U.S. Congress to prohibit and provide punishment for the physical "desecration" of the flag of the United States |
| History of attempts to pass the amendment | The proposed amendment has been passed by the House of Representatives biennially from 1995 to 2005, but has failed to achieve the constitutionally required super-majority vote in the U.S. Senate. |
| Public opinion | Public support for a constitutional amendment has varied over time, with some polls showing majority support and others showing majority opposition. |
| Supreme Court rulings on flag burning | The Supreme Court has ruled that flag burning is protected by the First Amendment as a form of symbolic speech and political expression. |
| Arguments against the amendment | Opponents argue that flag burning is rare and that amending the Constitution would set a dangerous precedent by modifying the protections of the First Amendment. |
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What You'll Learn
The First Amendment and free speech
The First Amendment protects freedom of speech, but the interpretation of this freedom is often debated. Flag burning is one such contentious issue. In Texas v. Johnson (1989), the Supreme Court upheld the right to burn the American flag as symbolic and political speech protected by the First Amendment. The majority opinion, written by Justice William Brennan, stated that the government cannot prohibit the expression of an idea simply because it is offensive or disagreeable. This decision was reaffirmed in United States v. Eichman (1990), where the Court struck down the Flag Protection Act of 1989 as unconstitutional.
However, these decisions sparked controversy and efforts to amend the Constitution to prohibit flag desecration. The Flag Desecration Amendment, or Flag-Burning Amendment, has been proposed multiple times in Congress but has failed to attain the required supermajority in the Senate. The amendment aims to empower Congress to prohibit and punish the physical desecration of the U.S. flag. Supporters argue that desecrating the flag is reprehensible conduct that does not contribute to any meaningful debate. Opponents, however, argue that it would be the first amendment to modify the protections of the First Amendment, setting a dangerous precedent.
While the proposed amendment specifically targets flag burning as a form of expression, it raises broader questions about the limits of free speech. The debate centres on balancing the protection of a national symbol with the preservation of free speech and the liberties it represents. Polls show varying public opinions on the matter, with some supporting a constitutional amendment while others oppose it, valuing their freedom of expression.
The First Amendment protects a wide range of speech, including symbolic and political expression. Flag burning, though controversial, has been deemed a form of protected speech by the Supreme Court. The Court's decisions in Texas v. Johnson and United States v. Eichman set a precedent for interpreting the First Amendment's protection of speech, even when it involves desecrating a national symbol. These rulings highlight the importance of upholding the principle of free speech, even when society may find certain expressions offensive or disagreeable.
The debate over flag burning and the First Amendment illustrates the complexity of balancing free speech with other societal values. While flag burning may be seen as disrespectful, it is a form of political expression that contributes to the marketplace of ideas. The First Amendment protects this expression, even when it may provoke strong emotions or disagreements. This protection of free speech is a cornerstone of American democracy, ensuring that individuals have the right to express their views without fear of legal repercussions.
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The Supreme Court's ruling on Texas v. Johnson
On June 21, 1989, the United States Supreme Court ruled in favour of Gregory Lee Johnson, who had burned an American flag outside the 1984 Republican National Convention in Dallas, Texas. Johnson was protesting the policies of President Ronald Reagan, specifically his aggressive Cold War policies. He was arrested and charged with violating a Texas statute that prevented the desecration of a venerated object, including the American flag, if such an action were likely to incite anger in others.
The Texas v. Johnson case saw the Court vote 5-4, holding that burning the flag was protected expression under the First Amendment. The Court agreed with Johnson that his actions were ""symbolic speech"" and political in nature, protected by the First Amendment. The ruling invalidated prohibitions on desecrating the American flag, enforced in 48 of the 50 states at the time.
Justice William Brennan wrote the majority opinion, joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy. Brennan reiterated the Court's recognition that the First Amendment protects non-speech acts as symbolic speech. He wrote that Johnson's conduct was "expressive" and did not threaten to disturb the peace. The majority opinion stated:
> "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."
In response to the Johnson decision, Congress passed a national anti-flag burning law, the Flag Protection Act of 1989. However, in 1990, the Supreme Court struck down this law as unconstitutional in United States v. Eichman, again voting 5-4. Justice Brennan wrote that the government could not prohibit the expression of an idea because it was offensive, and Justice Kennedy affirmed that the role of the Supreme Court was to uphold the Constitution, even in unpopular decisions.
The Texas v. Johnson case remains controversial, and Congress has attempted to amend the Constitution to prohibit flag desecration. However, these attempts have failed to achieve the required super-majority in the Senate.
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Congress' response to the Johnson decision
In response to the Supreme Court's ruling in Texas v. Johnson, Congress passed a national anti-flag burning law, the Flag Protection Act of 1989. This law was passed on 27 June 1989, just days after the Johnson decision, and made it a federal crime to desecrate the flag in any way, including burning it. The House of Representatives passed the resolution by a vote of 411-5, with President George H.W. Bush also strongly opposed to the ruling, calling flag burning "dead wrong".
The Flag Protection Act of 1989 was challenged in court by Gregory Lee Johnson and three other protestors, and the case, United States v. Eichman, was heard by the Supreme Court in 1990. The Court struck down the Flag Protection Act as unconstitutional, in another 5-4 decision, upholding that flag burning was a protected form of free speech under the First Amendment.
Since the Johnson decision, Congress has repeatedly attempted to amend the Constitution to prohibit flag desecration, including as recently as 2006, but these efforts have been unsuccessful. The issue of flag burning has remained controversial, with some lawmakers and members of the public expressing strong opposition to it.
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The Flag Protection Act of 1989
In the Texas v. Johnson case, the Court voted 5-4 in favor of Gregory Lee Johnson, a protester who had burned the American flag. The majority argued that Johnson's actions were symbolic speech and political in nature, and therefore protected by the First Amendment. Justice William Brennan, who wrote the majority opinion, stated that "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 desecration has continued to provoke heated discussions in the United States. While some argue that flag desecration is a form of protected free speech, others believe that it is necessary to protect the flag as a national symbol. Despite several attempts by Congress to pass a constitutional amendment prohibiting flag desecration, it has consistently failed to achieve the required super-majority vote in the Senate.
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Public opinion on flag burning
Those who support the right to burn the flag often hold the view that it is a form of symbolic speech protected by the First Amendment. They argue that the freedom to express criticism of the government or dissent is a fundamental aspect of a democratic society. In the words of Justice William Brennan, who wrote the majority decision in Texas v. Johnson, "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." This perspective emphasizes the importance of protecting even unpopular or controversial forms of expression to uphold the principles of free speech.
On the other hand, those who oppose flag burning see it as an act of desecration towards a symbol of national unity and pride. They believe that burning the flag is disrespectful to the country, its values, and those who have served or sacrificed for it. Some argue that flag burning crosses a line from peaceful protest to disruptive or threatening behaviour. In the Texas v. Johnson case, Chief Justice William Rehnquist dissented, stating, "I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag." He viewed the flag as more than just an "idea" or "point of view" and felt that its protection was necessary to maintain order and respect for the nation.
The debate over flag burning has sparked attempts to pass legislation or constitutional amendments prohibiting the practice. In 1989, Congress passed the Flag Protection Act, but it was later struck down by the Supreme Court as unconstitutional. Similar efforts have been made in subsequent years, with the most recent proposal failing by just one vote in the Senate in 2006.
While the legal right to burn the flag has been upheld by the Supreme Court, the act continues to evoke strong emotions and differing opinions among the American public. Some individuals may not support the act of burning the flag but still defend the right to do so, recognizing the importance of protecting free speech and the potential consequences of restricting it. This nuanced perspective highlights the complexity of the issue and the ongoing dialogue surrounding it.
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Frequently asked questions
The Flag Desecration Amendment is a proposed addition to the US Constitution that would allow the US Congress to prohibit the physical "desecration" of the US flag.
In 1989, the US Supreme Court upheld the rights of protesters to burn the American flag in a landmark First Amendment decision in Texas v. Johnson. The Court ruled that Johnson's actions were symbolic speech, political in nature, and protected under the First Amendment.
Yes, in response to the Texas v. Johnson decision, Congress passed the Flag Protection Act of 1989. However, this law was also struck down by the Supreme Court in United States v. Eichman (1990) as a violation of the First Amendment.
The proposed amendment has been approved by the US House of Representatives several times but has consistently failed to achieve the required super-majority vote in the US Senate.
Opponents argue that the amendment would create a slippery slope for future amendments and that it is a radical response to a non-existent dilemma, as flag burning is a rare occurrence. They also argue that it would be the first amendment to modify the protections of the First Amendment, which guarantees freedom of speech.
