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
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