Should Flag Burning Be Prohibited? It's not as simple as you might think Posted: Wednesday, July 19, 2006 Updated

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Should Flag Burning Be Prohibited?

It's not as simple as you might think
Posted: Wednesday, July 19, 2006

Updated: July 8th, 2008 05:27 PM GMT-05:00
Current Issues Contributor

For over 200 years, it was a crime to burn a United States flag. In 1989, the Supreme Court ruled that flag burning was a protected form of free expression (Texas v. Johnson); this holding was reiterated in another case in 1990 (U.S. v. Eichman). Since then a debate has raged through American society--should it be illegal to burn an American flag?

On June 23, 2005, the U.S. House of Representatives approved a measure which would outlaw desecration of the American flag; the measure passed 286 to 130. A similar bill had been passed in each of the past five years, but never cleared the Senate. In March, 2006, U.S. Senate Majority Leader Bill Frist promised to bring the Flag Protection Amendment to the Senate floor before the Fourth of July, 2006. It remains to be seen how the full Senate responds to this bill.

Most opponents to a flag burning amendment do not defend flag desecration, but defend the right to desecrate the flag ("I disapprove of what you say, but I will defend to the death your right to say it"- Voltaire). Arguments against a flag burning amendment often begin with the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Nowhere in the Constitution is the federal government given the power to abridge political expression. This is one of the bedrocks on which this nation was founded. The Supreme Court has held on several different occasions that the government should not prohibit the expression of an idea simply because society finds the idea offensive and disagreeable. Flag burning is a form of political dissent and free speech that must be protected.

But freedom of speech is not an absolute right. Certainly there are occasions where speech is restricted; the most simplistic example is the prohibition against yelling "fire" in a crowded theater. But other forms of speech have also been outlawed. Certain forms of obscenity, threats and libel are forms of speech which have been banned. Hate speech is another form of illegal speech. Hate speech can be very vague and subject to interpretation. The flag is a unique, identifiable symbol. Protecting this specific symbol is actually less restrictive than banning language which may be construed as "hate speech."

The flag is a singular, identifiable symbol, but it is hardly unique. If this symbol is protected against protest, what other symbols will be protected from protest? The Bible? The Torah? The Quran? The U.S. Constitution? Would it be illegal to burn a picture of the flag? What about a picture of the President, wearing a flag on his lapel? House Constitution Subcommittee Chair Charles Canady (R-FL), who supports a flag burning amendment, has said that the amendment would permit punishment for producing boxer shorts containing the design of a flag. It is not the flag that has to be protected. What has to be protected is what the flag represents. The flag represents this country, the flag represents dissent and the flag represents the freedoms of the U.S. Constitution.

The First Amendment is clear in that it only protects freedom of speech.

The First Amendment protects freedom of speech, not expression, and, whereas all speech may be an expression of a sort, not all expression is speech, and there is good reason why the framers of the First Amendment protected the one and not the other.
--Walter Berns, Making Patriots, p. 139

The writers of the Constitution were clear in separating simple "speech" from more expressive conduct. Senator Frist asks, "Is defacing a government building speech? No, it is considered a criminal act of vandalism. By the same token, burning the flag is not a form of constructive speech but an act of physical assault."

If flag burning is a crime, then use laws already on the books to prosecute offenders. There is no need to make a special law or to amend the Constitution when laws against public burning and creating public hazards already exist. A constitutional amendment against flag burning would be particularly distressing. Though the Constitution has been amended 26 times, there has never been an amendment dealing with a Bill of Rights issue.

Anytime a citizen's right to express dissent is compromised, all Americans should be concerned. The issue requires research and thoughtful discourse. Too often, issues involving patriotic symbols digress to partisan name-calling. Hopefully, this article presented some of the major arguments from both sides in an unbiased manner. After giving all sides of the issue careful consideration, contact your representative and exercise your right to free speech regarding the issue of the burning of an American Flag.

A poll conducted by Fox News poll revealed that 73% of Americans feel that burning an American Flag should be illegal while 21% said it should be legal. On June 27, 2006 a constitutional amendment to ban desecration of the flag did not pass the Senate. Senator Orrin Hatch (R-Utah) proposed an amendment that read "The Congress shall have power to prohibit physical desecration of the flag of the United States." The amendment would have needed two-thirds (67 votes) of the Senate voting in favor. The final tally was 66-34 in favor of the amendment. The amendment fell one vote short.

Detective Joseph Petrocelli is a 19 year veteran of New Jersey law enforcement. He currently works for the Passaic County (NJ) Sheriff's Department as the commander of a resource protection unit. He has two master's degrees, including a M.A. in criminal justice from Rutgers University. He is an adjunct college professor.

Should Flag Burning Be Prohibited Writing Assignment

* Explain whether you think there should be an amendment to the Constitution that bans burning the American flag. Your answer should be at least two (2) good paragraphs. Remember you should have a minimum of 4-5 good sentences in each paragraph.


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