The Supreme Court, Flag Burning, And Free Speech

The topic of whether Congress can pass a law prohibiting flag burning has been a subject of debate in the United States for decades. While some argue that flag burning is a form of protected symbolic speech and political expression under the First Amendment, others see it as an offensive act that deserves to be outlawed. Despite efforts by Congress to criminalize flag burning through the Flag Protection Acts of 1968 and 1989, the Supreme Court has consistently struck down these laws as unconstitutional, upholding the right to freedom of speech. The debate continues, with recent legislative attempts to propose a flag desecration amendment failing to pass in the Senate.

The First Amendment and freedom of speech

The First Amendment to the United States Constitution protects freedom of speech. It states that "Congress shall make no law [...] abridging the freedom of speech". However, the interpretation of this freedom is often debated, and the Supreme Court has ruled on several occasions that burning the American flag is protected by the First Amendment.

One notable case is Texas v. Johnson (1989), where the Supreme Court upheld the right of protesters to burn the American flag as symbolic speech, which could be expressed even if it offended those who disagreed. The Court's decision was controversial, with a 5-4 vote. In response, Congress passed the Flag Protection Act of 1989, which was subsequently struck down as unconstitutional in United States v. Eichman (1990). The Court again affirmed that the government's interest in preserving the flag did not outweigh an individual's First Amendment right to desecrate it in protest.

Despite these rulings, efforts have continued in Congress to criminalize flag burning, possibly through a constitutional amendment. Proponents of such legislation argue that burning the flag is offensive and deserves to be outlawed. However, opponents maintain that granting Congress this power would limit the principle of freedom of speech protected by the First Amendment.

A 2004 survey by the First Amendment Center found that a majority of Americans (53%) opposed amending the Constitution to prohibit flag burning or desecration. More recently, a 2020 YouGov poll showed a more divided opinion, with 49% thinking it should be illegal to burn or destroy the flag and 34% saying it should be legal. While the legislative branch has attempted to pass laws prohibiting flag burning, these efforts have been largely unsuccessful due to the Supreme Court's interpretation of the First Amendment, which prioritizes freedom of speech.

The Supreme Court's decision in Texas v. Johnson

In the case of Texas v. Johnson (1989), the United States Supreme Court upheld the rights of protesters to burn the American flag in a landmark First Amendment decision. The case revolved around Gregory Lee Johnson, who burned an American flag outside the 1984 Republican National Convention in Dallas, Texas, in protest of President Ronald Reagan's policies. Johnson was arrested and charged under a Texas statute that prohibited the desecration of venerated objects, including the American flag.

Johnson argued that his actions constituted '"symbolic speech" protected by the First Amendment. The Supreme Court agreed to hear his case and, in a 5-4 decision, ruled in Johnson's favor, stating that flag burning is a form of expressive conduct protected by the First Amendment. The Court's majority opinion, written by Justice William Brennan, held that Johnson's actions were political in nature and could be expressed even if they offended or disagreed with others. Brennan further stated that the state's interest in preserving the flag as a symbol of national unity and preventing breaches of the peace did not outweigh Johnson's right to engage in symbolic speech.

The Texas Court of Criminal Appeals had previously reversed Johnson's conviction, setting the stage for the Supreme Court's review. The Supreme Court's decision specifically reviewed the Texas state flag desecration statute rather than federal law. In response to this ruling, Congress passed the Flag Protection Act of 1989, which granted Congress the right to criminalize flag burning in public protests. However, this act was also struck down by the Supreme Court in United States v. Eichman (1990) as unconstitutional, again on First Amendment grounds.

The Texas v. Johnson decision and its affirmation of free speech rights in the context of flag burning set a significant precedent. It highlighted the Court's interpretation of the First Amendment's protection of symbolic speech, even when such speech involves desecrating a national symbol. The decision also underscored the principle that the government cannot prohibit expression simply because it disagrees with its message. This case marked a pivotal moment in the ongoing debate surrounding flag desecration and the balance between protecting symbolic values and upholding freedom of expression.

The Flag Protection Act of 1989

The 1989 Act was also not the last time Congress tried to prohibit flag burning. In 2004, the Senate considered a constitutional amendment to prohibit physical desecration of the US flag. However, this proposed amendment faced significant opposition, with a majority of Americans opposing it once they understood its potential impact on the First Amendment. The simple fact that flag burning is rare and not an epidemic was also raised as an argument against the need for such an amendment.

Despite these efforts, the Supreme Court has consistently struck down laws prohibiting flag burning as unconstitutional. In United States v. Eichman (1990), the Court invalidated the Flag Protection Act of 1989, reaffirming that the government's interest in preserving the flag as a symbol did not outweigh an individual's First Amendment right to desecrate the flag in protest. Justice William Brennan, who wrote the majority opinion in Texas v. Johnson, also emphasized the bedrock principle of the First Amendment, stating that the government could not prohibit the expression of an idea simply because society finds it offensive or disagreeable.

The proposed Constitutional Amendment to prohibit flag desecration

The Flag Desecration Amendment, often referred to as the Flag-Burning Amendment, is a proposed addition to the US Constitution that would allow Congress to prohibit the physical "desecration" of the US flag. The concept of flag desecration has sparked a heated debate over protecting a national symbol, preserving free speech, and upholding the liberty said to be represented by that national symbol.

The proposed amendment reads: "Congress shall have the power to prohibit the physical desecration of the flag of the United States." These 17 words would not make flag desecration illegal but would instead restore Congress's ability to fashion an appropriate statute, which would need to be passed by both houses and signed by the president.

The amendment has been passed by the two-thirds majority required in the House of Representatives several times, most recently in 2006. However, it has consistently failed to achieve the constitutionally required super-majority vote in the Senate, falling one or four votes short.

The amendment's proponents argue that burning the flag is offensive and should be outlawed. They also suggest that its passage would demonstrate that the American people govern the country, not the institutions of government. However, opponents argue that the amendment would limit the principle of freedom of speech, enshrined in the First Amendment, and that there is no epidemic of flag burnings that requires a constitutional response.

Public opinion on flag burning

The act of burning the American flag sparks intense debate in the United States, with varying opinions on the matter. While some view it as an offensive and political act of desecration, others defend it as a form of protected free speech.

Public opinion polls reflect a divide in attitudes towards flag burning. A 2020 YouGov poll found that about half of US adults (49%) believed it should be illegal to burn or intentionally destroy the American flag, while one-third (34%) supported the legality of flag burning. Age and political affiliation influenced these views, with older Americans (aged 55+) more inclined towards illegality (62%) and younger age groups showing mixed sentiments. Political leanings also played a role, with Republicans more likely to support a ban (77%) compared to Independents (50%) and Democrats (35%).

The concept of flag burning as a form of political expression is contentious. Some argue that it is an unacceptable form of desecration, disrespectful to the nation and those who serve it. This view holds that flag burning goes beyond symbolic speech and warrants legal repercussions. However, defenders of flag burning invoke the principles of free speech and the First Amendment. They argue that criminalising flag burning would set a dangerous precedent, allowing Congress to exert thought control and infringe upon the very freedoms the flag represents.

The Supreme Court has consistently ruled that flag burning is protected by the First Amendment, as seen in the Texas v. Johnson case in 1989. Despite this, the debate persists, with some, including former President Donald Trump, advocating for harsh penalties for flag burning. Trump's stance, supported by nearly half of Americans, calls for jail sentences for those who engage in this act.

Ultimately, the controversy surrounding flag burning underscores the complexities of balancing symbolic patriotism with the constitutional right to free expression. While public opinion remains divided, the legal precedent set by the Supreme Court protects flag burning as a form of political speech, even when it offends or provokes strong emotional responses.

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