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IS FLAG BURNING PROTECTED BY THE FIRST AMENDMENT?
“If a jerk burns a flag, America is not threatened. If a jerk burns a flag, democracy is not under siege. If a jerk burns a flag, freedom is not at risk and we are not threatened. My colleagues, we are offended; and to change our Constitution because someone offends us is, in itself, unconscionable,”
– Rep. Gary Ackerman (D-New York)
It has been held by the United States Supreme Court that burning an American flag as means of expression or peaceful political protest is an act that is fully protected under the first amendment. Government does not have the power to prohibit flag burning simply because they, or anyone else, may find it offensive. However, other laws or ordinances such as arson laws or rules governing the use of fire in public places may still be applicable.
In 1989, a man by the name of Gregory Lee Johnson was active in a political protest. When the demonstration was over, Johnson set fire to and burned the United States flag in front of the Dallas City Hall. Surrounding protesters chanted “America, the red, white, and blue, we spit on you.” While watching the flag go up in flames. Katsh 128
Johnson was arrested for violating a Texas flag desecration statute. He was convicted, sentenced, and fined. The court of appeals for the Fifth District of Texas upheld the conviction. The Texas Supreme Court of Criminal Appeals, however, reversed the decision holding that the conviction violated Johnson’s rights guaranteed under the first amendment.
When the case made it to the United States Supreme Court, it was decided that such a statute violated the first amendment, and that Johnson had indeed been wrongly convicted. Supreme Court Justice William Brennan stated that “interest in preserving the flag as a symbol of nationhood and national unity [does not] justify his criminal conviction for engaging in political expression.” He also said that punishing people who feel differently towards the flag is not the way to preserve it. Katsh
The United States Supreme Court concluded that the burning of the American flag was expressive conduct and was protected under the Constitution, namely the first amendment.
Almost immediately after the Johnson decision, Congress passed the Flag Protection act of 1989, making it a crime for anyone to knowingly mutilate, deface, burn, maintain on the floor or ground or trample upon any flag of the United States. The act caused chaos across the nation as people from every where come out to protest this newfound “forced patriotism”
People protested by desecrating nearly every flag within their reach. This came in front of the United States Supreme Court once again. The court firmly upheld the Johnson decision reasoning that the state’s interest in preserving the flag was directly related to the suppression of free expression. The court also pointed out that “The mere destruction or disfigurement of a symbols physical manifestation does not diminish or otherwise affect the symbol itself” United States v. Eichman, 496 U.S. 310 (1990)
For the past eleven years, congress has made every effort to legally prohibit the desecration of the American flag. The only way they can do that is to change the Constitution itself, and to place an outright restriction on the first amendment, and infringe upon our right to freedom.
“It would be a hollow victory indeed if we preserved the symbol of our freedoms by chipping away at those fundamental freedoms themselves.” John Glenn
George E. Bushnell Jr. President of the American Bar association argues that he did not serve his country to protect the physical symbol of our country, but rather to protect the ideals that it represents “especially the wrong-headed, ill considered, offensive political speech.” He also argues that “Not once in the more than 200 years since those freedoms were established have we seen fit to tinker with these principles.”
To create an amendment such as the proposed would be the first in our nation’s history to restrict the freedom of political protest and speech.
The proposed amendment would read ” The Congress shall have the power to prohibit the physical desecration of the flag of the United States of America.”
Many questions have to be answered before accepting such an amendment. What can be considered a flag of the United States of America? How about those little paper one used during celebration that always end up in the garbage or on the floor at the end of the night? What about clothing that has a flag on it. What is to be done with those when they are not wanted anymore? And what about those bumper stickers with flags on them that get mad splashed and filthy, who is going to determine where desecration of the American flag begins, and where it ends?
The proper way to dispose of a flag once it is old or worn is to burn it. What if someone were burning a flag to dispose of it, not to make a statement, how could they prove their story in a court of law once the evidence was burned. “Every lawyer will tell you that the toughest thing to prove is intent.” John Glenn
I don’t believe that the issue of people burning an American flag in protest is serious enough to warrant the proposed amendment and to take away the very rights that our nations flag represents.
“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.” Texas v. Johnson 491 U.S. 397 (1989)
“Responding to Extremist Speech: 20 frequently asked questions.” Anti –
defamation league homepage. http://www.adl.org/frames/front_20faq.html
“U.S. Supreme Court: United States v. Eichman, 496 U.S. 310 (1990)”
FindLaw homepage. http://caselaw.findla?case.pl?court (2/15/00)
“Statement of the honorable John Glenn?April 28, 1999.”
“Statement of George E. Bushnell Jr?August 4, 1995″ Flag burning homepage
“Chronology of flag burning” Flag burning homepage.
Katsh, Ethan. Taking sides: Clashing Views on Controversial Legal Issues.
Connecticut: Dushkin/McGraw-Hill. 1998.