РефератыИностранный языкFlFlag Burning Essay Research Paper The issue

Flag Burning Essay Research Paper The issue

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

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