The issue: Should the Constitution be amended to explicitly allow Congress to ban flag desecration? Or should flag desecration remain a constitutionally protected act?



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The issue: Should the Constitution be amended to explicitly allow Congress to ban flag desecration? Or should flag desecration remain a constitutionally protected act?

In August 2006, Dan Holden, a social studies teacher at Stuart Middle School in Louisville, Ky., was suspended from teaching after burning two U.S. flags in class. According to students, Holden was teaching a lesson on free speech; after burning the flags, he instructed his seventh-grade class to write about how they felt while watching the flags go up in flames. Holden will not be a charged with a crime, and school administrators say he will not be fired. However, his suspension was greeted with approval by many parents. School board member Pat O'Leary told reporters that teachers should not burn U.S. flags in front of children. "It's disgraceful," he said.












According to opinion polls, most Americans agree with O'Leary that burning or otherwise physically mutilating the U.S. flag is an abhorrent (detestable) act. For the most part, the flag is revered in the U.S. as a symbol of the country's many freedoms, which are outlined in the Bill of Rights. Because the flag is such an emotionally potent symbol to many Americans, it is on rare occasions publicly destroyed as a protest against the U.S., the U.S. government, or any social injustice for which the U.S. is perceived to be responsible.

There is a long-standing debate in the U.S. as to whether the act of flag desecration should be legal or illegal. Currently, there is no federal law against flag desecration, the Supreme Court having invalidated the most recent one in a 1990 decision. However, every state but Alaska has a law against deliberately harming the U.S. flag, even though the Supreme Court declared such laws unconstitutional in 1989.

In 2005, the U.S. House of Representatives--as it had done every two years since 1995--passed a bill that would add an amendment to the Constitution addressing the issue of flag desecration. The proposed amendment reads: "The Congress shall have the power to prohibit the physical desecration of the flag of the United States." For the amendment to be added to the Constitution, a two-thirds majority in both the House and the Senate must approve the measure, and then three-fourths of the states must ratify it.

The proposed amendment failed to receive the necessary two-thirds majority in the Senate when it was voted on in June 2006, just as it had in the previous five Congresses. It fell just one vote short, the narrowest margin of defeat yet.

Should the Constitution be amended in such a way that would explicitly allow the banning of flag desecration? Or is such an amendment unnecessary, or even a violation of constitutional rights?

Backers of a flag desecration amendment argue that for many Americans, the sight of a U.S. flag being burned or mutilated causes great consternation (concern, worry). The flag is an important symbol of freedom and the American spirit, and therefore should be protected from attack by the Constitution, supporters argue. Additionally, many supporters maintain that the Supreme Court decisions upholding the right to desecrate the U.S. flag is poorly reasoned. The court decided that flag burning is constitutionally protected free speech, but backers assert that it should not be categorized that way since it is an action, not speech.

Opponents of a flag burning amendment maintain that the ability to dissent is a fundamental American right. If someone wishes to express displeasure with the U.S. government by burning or destroying a flag, he or she should be able to do so without fear of prosecution, they say. Critics also say that politicians should not be wasting their time debating a relatively unimportant subject such as flag burning when there are more pressing issues to be addressed, such as poverty and war. Indeed, they continue, flag burning happens so rarely it is hardly worth talking about, let alone debating in Congress.

Flag Desecration Laws In the 20th Century

According to Robert Justin Goldstein, a professor of political science at Oakland University in Rochester, Mich., the U.S. flag was not always as revered as it is today. Prior to the American Civil War (1861-65), the flag was displayed almost exclusively on government buildings and forts; very few citizens hung the flag on their own property. After the war, however, Americans' attitude toward the flag began to shift. Goldstein writes that people started viewing the flag less as an abstract symbol of the American government and more as a deeply emotional representation of the American people--a crucial development in the many flag desecration debates to follow years later.

With the American flag's establishment as an important patriotic symbol came a heightened sensitivity to perceived instances of flag desecration. During the last several decades of the 19th century, the flag was often used in advertisements for commercial goods, and politicians seeking office were commonly seen waving flags on the campaign trail. In 1897, an organization called the American Flag Association was formed with the stated goals of criminalizing commercial and political uses of the flag, as well as its physical desecration or destruction. The group would prove to be instrumental in the creation of Flag Day, which has been observed by the U.S. each June 14 beginning in 1916.



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The efforts of the American Flag Association also resulted in a series of state laws that banned flag desecration after attempts to enact a federal law failed. By 1932, every state had passed a law banning flag desecration.

Many Americans were arrested in the late 1910s and early 1920s for crimes ranging from flag burning to failing to stand facing the flag during performances of the national anthem.

Several decades later, the U.S. controversially intervened in the Vietnam War (1959-75). A widespread protest movement arose in response to the war, with antiwar activists speaking out against what they perceived to be the U.S. military's unnecessary and immoral involvement in Vietnam. Flag burning was a fairly common sight during the antiwar demonstrations of that era. "Protesters increasingly found that they could provoke reaction by burning the symbol of the government they held responsible for mass murder," writes David Langum, a law professor at Samford University in Birmingham, Ala.

In 1968, at the height of antiwar activism in the U.S., Congress passed the Flag Protection Act, partially as a response to many Americans' negative feelings toward the images of flag burning that were being broadcast on television news programs each night. The law criminalized the deliberate desecration of the U.S. flag by "publicly mutilating, defacing, defiling, burning or trampling upon it." During the Vietnam era, thousands of demonstrators were arrested for flag desecration.

Shortly after that federal law went into effect, a state's flag desecration law was again challenged in the Supreme Court. The 1968 case Street v. New York involved a Brooklyn man named Sydney Street, who publicly burned a flag in protest after hearing that civil rights leader James Meredith had been shot and wounded by a sniper in Mississippi. The New York City police officer who responded to the scene reported hearing Street say, "We don't need no damn flag," and, "Yes, that is my flag; I burned it. If they let that happen to Meredith we don't need an American flag."

Street was charged with flag desecration. As in many other states, New York's flag desecration law prohibited both the physical mutilation of the flag and negative comments made about it. Street appealed his conviction on the grounds that New York's law was vague and violated his right to free speech. Eventually, the Supreme Court took the case, and overturned Street's conviction. The court said that it was unconstitutional to disallow negative spoken comments about the flag. But the court's opinion addressed only those spoken comments; it did not give an opinion on whether the physical desecration of the flag qualified as legitimate free speech.

Throughout the 1970s and 1980s, nearly two dozen states revised their flag desecration laws in light of the Street decision, eliminating restrictions on negative verbal comments about the flag.

As the 1980s drew to a close, the Supreme Court heard another two important cases dealing with flag desecration. The first, Texas v. Johnson, was argued in 1989. Five years earlier, in the election year of 1984, Gregory Johnson of the Maoist group the Revolutionary Communist Youth Brigade set fire to a U.S. flag while protesting the Republican National Convention in Dallas, Texas. A Dallas court then sentenced Johnson to a year in prison and a $2,000 fine. His conviction, however, was soon overturned by Texas's highest criminal court.

Eventually the Supreme Court heard the case. In a controversial 5-4 decision, the Supreme Court found that flag burning is a constitutionally protected act. In his majority opinion, Justice William Brennan wrote that by criminalizing flag burning "we dilute the freedom that this cherished emblem represents." For the first time, the U.S.'s highest court had affirmed flag burning as a legitimate act of free speech.

A Constitutional Amendment Banning Flag Burning?

Although the Supreme Court's Johnson ruling would appear to have invalidated all flag desecration laws on the state level, nearly every state's legal code retains language forbidding the practice. And while the Johnson ruling struck down the federal Flag Protection Act as unconstitutional, since 1995 there has been a dedicated movement in Congress to amend the Constitution to allow states to legally ban flag desecration without fear of intervention by any court. If the Constitution were thus amended, no court could rule a state or federal flag desecration law unconstitutional, because the U.S. flag would be explicitly protected by the Constitution itself.




In 1995, the House approved a “flag burning amendment” bill with a final vote of 312 to 120, well over the necessary two-thirds majority. Of the 312 representatives who voted for the amendment, 219 were Republicans, while Democrats accounted for 107 of the 120 votes against the proposal. Republicans senators, led by Orrin Hatch (R, Utah), attempted to get the Senate to pass the amendment as well. And while the Senate's bill won 63 of a possible 100 votes, it still fell four votes short of the two-thirds majority required to set into motion the next step in the constitutional amendment ratification process.

Since that 1995 vote, every two years the House has voted to approve the flag burning amendment. However, in 1997, 2001 and 2003 the Senate did not vote on the bill at all, and the proposed amendment failed. The only time the Senate actually took up a vote following the House's two-thirds approval was in 1999. But once again, only 63 senators voted in favor of the amendment.

Although the flag burning amendment failed to pass in both houses of Congress, supporters say they are optimistic that the next attempt will be successful. They cite the closeness of the most recent Senate vote as proof that the eventual passage of the flag burning amendment is inevitable. Those supporters also point to opinion polls that show that the U.S. public largely supports the idea of a flag burning amendment. However, opponents say that such an amendment is unnecessary, and a possible infringement upon free speech.

Critics Say Flag Burning Should Remain Protected

Opponents of the proposed flag burning amendment say that its underlying philosophy runs counter to the First Amendment, which gives Americans the right to free speech. "The First Amendment never needs defending when it comes to popular speech," says Sen. Patrick Leahy (D-VT). "It's when it comes to unpopular speech that it needs defending." In other words, although publicly destroying the U.S. flag may offend many people, an American's right to make that statement without fear of punishment should nevertheless remain protected by the Constitution, critics say.

Indeed, many opponents allege that, far from being a patriotic assertion of the U.S. flag's symbolic power, the proposed amendment is actually deeply un-American. It limits a person's right to express dissatisfaction with the U.S. government, which is a fundamental right that every American has, they maintain. "There's no reasonable denying that this...is a frontal attack on the spirit of the First Amendment," writes Michael Kinsley, the founding editor of the online magazine Slate. "It's about amending the Bill of Rights for the first time ever in order to outlaw a form of criticism of the government."

Additionally, opponents argue that flag burning is hardly a pressing issue in today's society. There are other, far more important issues, including the threat of terrorism, the widening income gap between the rich and the poor, and many others, opponents say. Congress should not spend its time debating the relative merits of flag burning when it could be addressing those issues instead, critics contend.

Besides, opponents say, flag burning is extremely rare. Newsweek columnist Jonathan Alter notes that in the last 200 years, there have been only 45 documented incidents of flag burning in the U.S. Since the Texas v. Johnson decision in 1989, roughly five instances of flag burning have occurred.

Critics of the proposed amendment further contend that the politicians who are most responsible for pushing the amendment are cynically playing on the emotions of Americans in order to further their political careers. Flag desecration is an issue that provokes intense emotions from many patriotic Americans, critics point out. Supporters of the amendment "are playing with [Americans'] essential patriotism for political profit," writes political commentator and former presidential speech writer Peggy Noonan. By declaring their intentions to protect the flag, politicians stand to improve their popularity among the electorate, even though flag desecration is not in and of itself a particularly important issue, opponents contend.

Supporters Call U.S. Flag a Powerful Symbol of Freedom

The amendment's supporters say that the U.S. flag is indeed a powerful symbol of the U.S.'s freedom--which is precisely why it should be defended from physical attack. "Destroying the very emblem of that freedom is just plain wrong," says former Senate Majority Leader Bill Frist (R-TN). To patriotic Americans, the sight of a U.S. flag being burned or otherwise defaced provokes an intense emotional reaction that cannot be ignored, supporters say, and the government should take steps to prevent it from ever happening.

Proponents also argue that the U.S. flag further symbolizes the sacrifice made by millions of American combat veterans, who have, throughout history, defended the U.S.--and, by extension, the U.S. flag--from various threats to the country's liberty. Sen. Arlen Specter (D-PA), the former chairman of the Senate Judiciary Committee, argued during a Senate debate on the flag burning amendment that "the flag [is] a symbol of what veterans fought for, what they sustained wounds for, what they sustained loss of limbs for and what they sustained loss of life for." Supporters such as Specter argue that the flag burning amendment is worth passing even if amounts to nothing more than a symbolic gesture honoring those veterans.

Many of those backers also say that such an amendment is now more important than ever. As of September 2006, the U.S. is fighting wars in Iraq and Afghanistan as part of its war on terrorism, which was declared by President Bush (R) in the wake of terrorist attacks against the U.S. in September 2001. The attacks sparked a nationwide outpouring of patriotism, supporters say. An amendment banning flag desecration would rekindle that patriotic spirit, as well as honor the victims of the attacks on the Pentagon and World Trade Center, backers assert.

Public opinion polls consistently show that the American people believe flag desecration should be illegal, supporters note. A Fox News poll from June 2006 shows that 73% of those surveyed believe flag burning should be against the law. Although that support dips slightly when respondents are asked whether flag burning warrants a constitutional amendment, a majority still believes that Congress should pass such an amendment. A June 2006 CNN poll indicates that 56% of Americans back an amendment to the Constitution banning flag desecration. Americans, on the whole, want the U.S. flag protected by law, backers assert.

Many supporters say that flag desecration should not be categorized as free speech because it is not speech at all. "Burning a flag is no more speech than nude dancing, public urination, or a bar-room brawl--although each of these things may express people's thoughts and feelings," write the editors of the National Review, a conservative magazine. Protesters seeking to criticize the U.S. government can do so through their words; anything they say will be protected by the First Amendment, supporters say. But burning or otherwise desecrating the flag does not count as speech, and thus falls outside the First Amendment's scope, supporters argue.

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Flag Desecration and the First Amendment

  1. Summarize the arguments of those who want there to be a constitutional amendment banning flag desecration. (Pages 1-2)

  2. Summarize the arguments of those who do not want there to be a constitutional amendment banning flag desecration. (Page 2)

  3. Trace Americans’ feelings about the U.S. flag from the Civil War to the Vietnam War. How did our feelings change over time? (Pages 2-3)

  4. What did the SCt rule in Street v. New York (1968)? Why did its ruling necessitate another ruling in Texas v. Johnson (1989)? (Pages 3-4)

  5. Which party—Democrat or Republican—supports adding an amendment to the Constitution that would prohibit flag desecration? Why do you think that this is the case? (Pages 4-5)

  6. What does Senator Leahy say about the First Amendment and flag desecration? How about writer Michael Kinsley? Do you agree with them? (Page 5)

  7. What is Senator Specter’s argument in favor of a flag desecration amendment? (Page 6)

  8. Does a majority of Americans favor state and federal laws banning flag desecration? How about a constitutional amendment banning flag desecration? (Page 6)

  9. Why do the editors of National Review say that flag desecration is not free speech protected by the First Amendment? (Page 7)

  10. Do you think burning a U.S. flag is an effective form of protest? Why or why not?

  11. In the majority opinion in the case Texas v. Johnson, SCt Justice William Brennan wrote that by criminalizing flag desecration “we dilute the freedom that this cherished emblem represents.” What do you think he meant by that?

  12. How do you feel when you see images of the U.S. flag burning? Does it make a difference if Americans or foreigners burn the flag? Should flag desecration be considered free speech protected by the First Amendment? Why or why not?


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