Omar Bennett
The act of burning a flag is a highly controversial topic, with some arguing that it is a form of protected free speech, while others believe it is an act of desecration that should be prohibited. In the United States, flag burning is currently constitutionally protected under the First Amendment, as affirmed by the Supreme Court in several landmark cases, including Texas v. Johnson and United States v. Eichman. However, this has not always been the case, and there have been numerous attempts to amend the Constitution to outlaw flag burning. The debate surrounding flag burning continues to centre around the tension between protecting a national symbol and preserving free speech.
| Characteristics | Values |
|---|---|
| Protected under | First Amendment |
| Reason | Preserving free speech |
| Reason | Upholding liberty |
| Reason | Preventing government interference |
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What You'll Learn
The First Amendment
Flag burning and flag desecration are protected by the First Amendment as a form of free speech. However, this has not always been the case, and there have been several attempts to amend the First Amendment to outlaw flag burning.
In 1989, the Supreme Court ruled that flag burning was constitutionally protected in Texas v. Johnson. In reaction to this decision, Congress passed a national anti-flag burning law called the Flag Protection Act of 1989. However, in 1990, in United States v. Eichman, the Court struck down that law as unconstitutional, citing the First Amendment. Justice William Brennan 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."
Despite this ruling, the issue of flag burning remains controversial, and there have been repeated attempts to amend the Constitution to prohibit flag desecration. As recently as 2006, Congress attempted to pass the Flag Desecration Amendment, which would allow Congress to prohibit and punish the physical "desecration" of the US flag. While the proposal has passed by a two-thirds majority in the House of Representatives several times, it has consistently failed to attain the required super-majority in the Senate.
The debate over flag burning continues to provoke strong emotions, pitting the protection of a national symbol against the preservation of free speech and the liberties said to be represented by that symbol.
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Free speech
The act of burning the American flag is constitutionally protected as free speech under the First Amendment. This means that flag burning and flag desecration are allowable expressive conduct.
In 1989, the Supreme Court ruled that flag burning was constitutionally protected in Texas v. Johnson. In reaction to this decision, Congress passed a national anti-flag burning law called the Flag Protection Act of 1989. However, in 1990, in United States v. Eichman, the Court struck down that law as unconstitutional. Justice William Brennan 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".
Since then, there have been several attempts to amend the Constitution to prohibit flag desecration. In every Congress between 1995 and 2005, the House of Representatives, when controlled by Republicans, has proposed such an amendment by the necessary two-thirds majority. However, each time the amendment has fallen short in the Senate, which is less sympathetic to amendments in general. The most recent attempt to amend the Constitution to prohibit flag desecration was in 2006, and it failed by one vote in the Senate.
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Protecting a national symbol
Flag burning is constitutionally protected as a form of expressive conduct and symbolic speech. In United States v. Eichman (1990), the Court held that burning the flag was allowable expressive conduct, protected by the First Amendment. The majority opinion affirmed that "the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable". This ruling built on the Johnson decision, which held that flag burning was constitutionally protected symbolic speech.
The concept of flag desecration provokes a heated debate over protecting a national symbol, preserving free speech, and upholding the liberty said to be represented by that national symbol. While some argue that flag burning is a form of protected expression, others view it as a disrespectful act that should be prohibited.
Despite attempts to amend the Constitution to outlaw flag burning, no changes to the First Amendment have ever been made. In every Congress between 1995 and 2005, the House of Representatives proposed an amendment to protect the American flag, but each time the amendment fell short in the Senate. As recently as 2006, Congress attempted to amend the Constitution to prohibit flag desecration, but the effort failed by one vote in the Senate.
The debate over flag burning and its constitutional protection continues to be a controversial issue, with strong arguments on both sides. While some view flag burning as a form of protected expression, others see it as an act of desecration towards a national symbol.
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Upholding liberty
Flag burning is constitutionally protected under the First Amendment as a form of expressive conduct and symbolic speech. In United States v. Eichman (1990), the Court held that burning the flag was allowable expressive conduct, citing that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable. This ruling affirmed the decision in Texas v. Johnson, in which flag burning was held to be constitutionally protected.
The concept of flag desecration provokes a heated debate over protecting a national symbol, preserving free speech, and upholding the liberty represented by that symbol. While some view flag burning as an offensive act, others argue that it is a form of protected expression guaranteed by the First Amendment. The First Amendment protects the right to free speech, which includes the right to express ideas and opinions, even if they are considered offensive or disagreeable by others.
Attempts have been made to amend the Constitution to prohibit flag desecration, but these efforts have failed to attain the required super-majority in the Senate. The Flag Desecration Amendment, also known as the Flag-Burning Amendment, is a proposed addition to the Constitution that would allow Congress to prohibit and punish the physical "desecration" of the flag. However, the amendment has faced opposition and has not been passed.
The debate over flag burning and free speech extends beyond legal and political spheres, often sparking discussions about the role of government, the limits of expression, and the importance of upholding the values and liberties enshrined in the Constitution. While flag burning may be seen as disrespectful by some, it serves as a reminder of the freedoms and rights guaranteed to all citizens, even when those expressions may be controversial or unpopular.
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The Flag Desecration Amendment
In United States v. Eichman (1990), the Court, once again by a 5-4 vote, held that burning the flag was allowable expressive conduct. As in Texas v. Johnson, the majority opinion affirmed that “ [i]f 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 reaction to the Johnson decision, which only applied to the Texas flag-desecration law, Congress passed a national anti-flag burning law called the Flag Protection Act of 1989. But in 1990, in United States v. Eichman, the Court struck down that law as unconstitutional as well, in another 5-4 decision.
In every Congress between 1995 and 2005, the House of Representatives, when controlled by Republicans, has proposed such an amendment by the necessary two-thirds majority, but each time the amendment has fallen short in the Senate, which is less sympathetic to amendments in general. Congress has, as recently as 2006, attempted to amend the Constitution to prohibit flag desecration, with the effort failing by one vote in the Senate.
Flag burning and flag desecration are protected free speech under the First Amendment. However, this hasn't always been the case, and such actions could still get a person in trouble. There have also been attempts to amend the First Amendment to outlaw flag burning and flag desecration, but no changes to the First Amendment have ever been made.
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Frequently asked questions
Yes, flag burning is protected free speech under the First Amendment.
The Court ruled that flag burning is a form of symbolic speech that is protected against government interference.
No, flag burning could have gotten a person in trouble in the past. In 1989, Congress passed a national anti-flag burning law called the Flag Protection Act, but this was struck down as unconstitutional in 1990.
Yes, there have been several attempts to amend the First Amendment to outlaw flag burning and flag desecration, but no changes to the First Amendment have ever been made.
