Flag Burning Essay, Research Paper

The issue of flag desecration has been and continues to be

a highlycontroversial issue; on the one side there are those who

believe that the flag is a unique symbol for our nation which

should be preserved at all costs, while on the other are those

who believe that flag burning is a form of free speech and that

any legislation designed to prevent this form of expression is

contrary to the ideals of the First Amendment to our

Constitution. Shawn Eichman, as well as the majority of the

United States Supreme Court, is in the latter of these groups.

Many citizens believe that the freedom of speech granted to them

in the First Amendment means that they can express themselves in

any manner they wish as long as their right of expression does

not infringe on the rights of others; others, however, believe

that there are exceptions to this right of speech.

Such constitutional issues need to be worked out by the

Supreme Court, which uses its powers of constitutional

interpretation and judicial review to outline the underpinnings

of the Constitution and interpret the law. The case which acted

as an impetus for Eichman’s actions was that of Texas v.

Johnson. “In 1984, in Dallas, Gregory Johnson, a member of the

Revolutionary Communist Youth Brigade, a Maoists society,

publicly burned a stolen American flag to protests the re-

nomination of Ronald Reagan as the Republican candidate” (Levy

217). The police consequently arrested Johnson not for his

message but for his manner in delivering it; he had violated a

Texas statute that prohibited the desecration of a venerated

object by acts that “the offender knows will seriously offend

one or more persons” (Downs 83).

Johnson had hoped to capture America’s attention with this

burning, and he did; however, his protest earned him more than a

moment in the national spotlight. “Under Texas’s tough anti-

flag-burning statute, Johnson was fine $2,000 and sentenced to a

year in prison” (Relin 16). In Texas v. Johnson a majority of

the Supreme Court considered for the first time whether the

First Amendment protects desecration of the United States flag

as a form of symbolic speech. A sharply divided Court had

previously dealt with symbolic speech cases that involved

alleged misuses of the flag. While “the Court had ruled in favor

of the defendants in those cases (Street v. New York, 1969;

Smith v. Goguen, 1974; Spence v. Washington, 1974), it had done

so on narrow grounds, refusing to confront the ultimate question

status of flag desecration” (Downs 868).

The court ruled in favor of Johnson (5-4), believing that

“there was no evidence that Johnson’s expression threatened an

imminent disturbance of the peace, and that the statute’s

protection of the integrity of the flag as a symbol was

improperly directed at the communicative message entailed in

flag burning” (Downs 868). Justice Brennan concluded

by saying, “We do not consecrate the flag by punishing it’s

desecration, for in doing so we dilute the freedom that this

cherished emblem represents” (Witt 409). Reacting to this

ruling, the Untied State’s Congress sought to pass legislation

that would overturn it.

The Flag Protection Amendment was introduced and then voted

down, but then the Flag Protection Act was passed in both

houses. President Bush allowed this act to pass without his

signature, “an expression of his preference for a Constitutional

amendment” (Apel “Flag Protection”). The Act criminalized the

conduct of anyone who “knowingly mutilates, defaces, physically

defiles, burns, maintains on the floor or ground, or tramples

upon” a United States flag, except conduct related to the

disposal of a “worn or soiled” flag (U.S.). On October 30th,

1989, the day the bill went into effect, hundreds of people

burned flags; among them was Shawn Eichman.

The Justice Department admitted that the law was

unconstitutional under Texas v. Johnson, but prosecuted anyways,

hoping to get the court to reverse its decision. The court

decided that “flag desecration is a form of political expression

that is protected under the First Amendment rights to free

speech,” and ruled in favor of Eichman by a vote of 5 to 4, thus

nullify the Flag Protection Act which Eichman had been

protesting (“House” 1144). The majority consisted of Justices

Brennan, Marshall, Blackmun, Scalia, and Kennedy. Dissenting

were Justices Stevens, Renquist, White, and O’Connor. For the

majority opinion, Justice Brennan wrote the following: Although

the Flag Protection Act contains no explicit content-based

limitation on the scope of prohibited conduct, it is

nevertheless clear that the Government’s asserted interest is

related to the suppression of free expression…Moreover, the

precise language of the Act’s prohibitions confirms Congress’

interest in the communicative impact of flag destruction…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 offensive or

disagreeable. Punishing desecration of the flag dilutes the very

freedom that makes this emblem so revered, and worth revering.

According to Justice Anthony Stevens, “The landmark

decision was simply a pure command of the Constitution. It is

poignant but fundamental that the flag protects even those who

hold it in contempt” (Relin 16). Dissenting, Justice Stevens,

along with the Chief Justice, Justice White and O’Connor wrote:

…It is equally well settled that certain methods of expression

may be prohibited if(a) the prohibition is supported by a

legitimate societal interest this is unrelated to suppression of

the ideas the speaker desires to express; (b) the prohibition

does not entail any interference with the speaker’s freedom to

express those ideas by other means; and (c) the interest in

allowing the speaker complete freedom of choice among

alternative methods of expression is less important than the

societal interest supporting the prohibition.

Justice Stevens concluded his opinion that by destroying

the symbol of freedom, the individual communicates a willingness

to destroy those freedoms themselves: By burning the embodiment

of America’s collective commitment to freedom and equality, the

flag burner charges that the majority has forsaken the

commitment–that continued respect for the flag is nothing more

than hypocrisy. Such a charge may be made even if the flag

burner loves the country and zealously pursues the ideals that

the country claims to honor. (Supreme) Groups such as the

American Civil Liberties Union (ACLU) praised the ruling. Laura

W. Murphy, Director of the ACLU’s National Washington Office

showed her support when she said, “The First Amendment is this

country’s first principle. It is a critical part of what has

made our country uniquely free.

We have been strengthened, not weakened, by the sweep of

its language and by the Supreme Court’s adherence to its true

meaning” (Apel “ACLU”). Many anti-flag desecration groups,

particularly the Citizens’ Flag Alliance (CFA), were outraged by

this ruling. These organizations petitioned Congress to

reintroduce the Flag Protection Amendment. Since the

ratification of the Constitution in 1789, some 10,000 attempts

have been made to amend it. They have included ideas such as

“eliminating the Senate,” and renaming the country the “United

States of Earth.” But “never in the nations history has anyone

tried to amend the Bill of Rights.” (Relin 18) To do so would be

a dramatic step in that it could pave the way for further future

limitations on our constitutional freedoms.

For an amendment to the Constitution to be made, “The house

and the Senate have to propose (each by 2/3 vote) exactly the

same text before the amendment is open for ratification by the

states” (Apel “Hasbrouck”). If the amendment (to the First

Amendment) is passed in both chambers, it then goes to the

states for ratification. In 1990, both the House and Senate

failed “to muster the required two-thirds majority to pass the

Flag Protection Amendment (Citizens’). In 1995, however, the

amendment cleared the House by a vote of 312-120. This Senate

Joint Resolution 31 (S.J. Res. 31) was also passed by the Senate

Judiciary Committee by a vote of 12-6, but was then rejected by

the Senate by only 3 votes. In February of 1998, Senators Orrin

Hatch (R-UT) and Max Cleland (D-GA) reintroduced the amendment

as S.J. Res. 40, but it was decided that there was not enough

time left in the term to vote on the amendment.

Most recently, in March of 1999, the Flag Protection Amendment

was reintroduced once again as S. J. Res. 14. Once again, it was

passed in the House and by the Senate Judiciary Committee, but

to date has not become ratified. Among those against the

original amendment in 1990 were George Mitchell, Tom Daschle,

Patrick Leahy, Dale Bumpers, David Boren, Howard Metzenbaum,

Barbara Mikulski, Jeff Bingaman, Bill Bradley, Paul Simon, and

Christopher Dodd. Perhaps the most ardent opponent to the

amendment was Ted Kennedy. In an eloquent speech he gave on June

11, 1990 he stated: When we pledge allegiance to the flag, we

pledge allegiance to the principles for which it stands. Few, if

any, of those are more fundamental to the strength of our

democracy than the first amendment’s guarantee of freedom of

speech. Let us not start down this disastrous road of

restricting the majestic scope of the first amendment by picking

the kinds of speech that are to be permitted in our society.

He goes on to mention that this constitutional amendment might

“irreparably damage the separation of powers that has protected

our constitutional freedoms throughout history…because judges

insulated from public pressure can best evaluate the claims of

unpopular minorities.” Kennedy is saying here that since

Congress can be greatly influenced by special interest groups,

such as the Citizens’ Flag Alliance, it is the responsibility of

the judiciary branch of government to objectively rule as to

what is truly constitutional. If the Senate amends the Bill of

Rights for the first time in history by passing the Flag

Protection Amendment, who knows where they would stop. “Every

nation in the world has a flag, and many of them, including some

democracies, have laws against desecrating their flag. No other

nation has a Bill of Rights” (Levy 219).

All of the proponents for the Eichman decision who were

also against the Flag Protection Amendment used very logical,

well-structured arguments, while those dissenting and in support

of the “amendment to an amendment” use mostly emotional

arguments and focus on the respect owed to all those who have

died in the military protecting the nation. These in the latter

group seem usually to be associated with the military themselves

(e.g. Major General Patrick H. Brady is the Board Chairman of

the Citizens’ Flag Alliance). Justice Stevens argued that flag-

burning was not an acceptable form of expression because people

could convey their views by other means; he seems to have failed

to realize, however, that it is not the right of the government

to limit one to a certain means of voicing his or her opinions.

Flag burning is a form of protest which rarely occurs and which

does little but offend others. Perhaps a law such as the Flag

Protection Act, while unconstitutional, is permissible as a

means of silencing organization such as the CFA, but an

amendment to our Bill of Rights is certainly going too far.

Apel, Warren S. “ACLU Action Report.” Online. Apel, Warren S. “Chronology to Flag Burning.” Online. Apel, Warren S. “The Flag Protection Act of 1989.” Online. Apel, Warren S. “Hasbrouk Explains the Voting Procedure.” Online. “Citizens’ Flag Alliance: Significant Campaign Events.” Online. Downs, Donald A. “Eichman, United States v.” The Oxford Guide to United States Supreme Court Decisions. New York: Oxford University Press, 1999: 83. Downs, Donald A. “Texas v. Johnson.” The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992: 868-869. “House Panel Approves Flag-Burning Measure.” Congressional Quarterly Weekly Report 17 May, 1997: 1444. Levy, Leonard W. “Flag Desecration.” Encyclopedia of the American Constitution. New York: MacMillan Publishing Company, 1992: 217-220. Relin, David Oliver. “A Burning Question.” Scholastic Update 21 Sept, 1990: 16-19. “Supreme Court of the United States.” Online. “Ted Kennedy.” Online. “U.S. Supreme Court–United States v. Eichman.” Online. Witt, Elden. “Protest and the Flag.” Congressional Quarterly’s Guide to the Supreme Court. Washington D.C.: Congressional Quarterly Inc., 1990: 409