Flag Burning: Free Speech Or Criminal Act?

The topic of flag burning is a sensitive and controversial issue that has sparked heated debates in the United States. While some view it as an offensive act of desecration, others argue that it is a form of protected symbolic speech under the First Amendment. The discussion centres around the question of whether flag burning is an expression of political views that should be safeguarded by the freedom of speech, or if it is a disrespectful act towards a national symbol that warrants legal consequences. The Supreme Court's landmark decision in Texas v. Johnson ruled that flag burning is protected by the First Amendment, but the ongoing attempts to pass a Flag Desecration Amendment indicate that the debate is far from settled.

The First Amendment protects flag burning as symbolic speech

Justice William Brennan, who wrote the majority decision, stated that Johnson's conduct did not threaten to disturb the peace and that the state's interest in preserving the flag as a symbol did not justify a criminal conviction for engaging in political expression. He was joined by Justices Anthony Kennedy, Thurgood Marshall, Harry Blackmun, and Antonin Scalia in the majority decision.

In his concurrence, Justice Kennedy succinctly explained the Court's reasoning: "The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result."

The Texas v. Johnson case is not an isolated incident. The battle in the courts over American flag desecration has a long history, dating back to 1907 in Halter v. Nebraska, where the Court upheld a state law prohibiting the use of flag labels on beer bottles. In 1968, Congress approved the Federal Flag Desecration Law, making it illegal to publicly mutilate, deface, or burn the American flag. However, in 1974, the Court held in Spence v. Washington that an individual could not be convicted for altering the American flag with a peace sign, indicating a shift towards protecting flag desecration as a form of symbolic speech.

Despite the controversial nature of the Texas v. Johnson ruling, the First Amendment continues to protect flag burning as symbolic speech. The Supreme Court reaffirmed this protection in United States v. Eichman (1990), striking down the Flag Protection Act of 1989 as unconstitutional. Justice Brennan, citing the Johnson case, wrote, "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 itself offensive or disagreeable."

The Flag Protection Act of 1968 made flag burning illegal

In 1968, the 90th US Congress passed the first Flag Protection Act, which made flag burning illegal. This act was passed in response to protests against the Vietnam War, which were accompanied by the desecration of the American flag. The Flag Protection Act of 1968 nationalized a 1947 law that prohibited the desecration of the US flag in the District of Columbia. The 1968 Act also specified that:

> "Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year."

The Flag Protection Act of 1968 was later overturned on First Amendment grounds in the Texas v. Johnson case of 1989. In this case, the United States Supreme Court upheld the rights of protesters to burn the American flag, in a landmark First Amendment decision. The Court voted 5-4 in favor of Gregory Lee Johnson, the protester who had burned the flag. The majority argued that Johnson's actions were symbolic speech, political in nature, and could be expressed even at the expense of the national symbol.

Justice William Brennan wrote the majority decision, stating that:

> "Johnson was convicted for engaging in expressive conduct. The State’s interest in preventing breaches of the peace does not support his conviction because Johnson’s conduct did not threaten to disturb the peace. Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression."

Despite the Supreme Court's ruling in the Texas v. Johnson case, the debate over flag burning continues to be a controversial issue in the United States. Congress has made several attempts to amend the Constitution to prohibit flag desecration, including as recently as 2006, when an attempt failed by one vote in the Senate.

The US Supreme Court ruled flag burning legal in 1989

On June 21, 1989, the United States Supreme Court ruled that protesters had the right to burn the American flag, in a landmark First Amendment decision. The ruling came about as a result of the controversial Texas v. Johnson case, in which the Court voted 5-4 in favour of Gregory Lee Johnson, a protester who had burned the flag during a protest outside the Republican National Convention in Dallas in 1984. Johnson was convicted under Texas law and sentenced to one year in prison and ordered to pay a $2,000 fine. However, the Texas Court of Criminal Appeals overturned his conviction, citing that his actions were symbolic speech protected by the First Amendment.

The Supreme Court's decision was based on the argument that Johnson's actions were symbolic speech, political in nature, and could be expressed even if they offended those who disagreed with him. Justice William Brennan, who wrote the majority decision, stated that the state's interest in preserving the flag as a symbol of nationhood and national unity did not justify Johnson's criminal conviction for engaging in political expression. The ruling also noted that Johnson's conduct did not threaten to disturb the peace.

The ruling was not without dissent, with Chief Justice William Rehnquist arguing that the flag is not just another idea or point of view but a venerated national symbol. Despite the controversy, the Supreme Court's decision in Texas v. Johnson set a precedent that upheld the rights of individuals to engage in political expression, even if it involved desecrating the American flag.

Following the ruling in Texas v. Johnson, Congress passed the Flag Protection Act of 1989, making it a federal crime to desecrate the US flag. However, this law was also struck down by the Supreme Court in 1990 in the case of United States v. Eichman, reaffirming the protection of flag burning as a form of constitutionally protected free speech.

The Flag Protection Act of 1989 was passed to criminalise flag burning

The text of the Flag Protection Act of 1989 states:

> (a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.

> (2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled.

The Act defined the "flag of the United States" as:

> ...any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.

The Supreme Court's ruling in Texas v. Johnson was based on the principle that the flag is a revered national symbol because it represents the land of the free, and that this freedom includes the ability to use or abuse the flag in protest. The Court held that the government's interest in preserving the flag as a symbol does not outweigh an individual's First Amendment right to disparage that symbol through expressive conduct.

The Flag Protection Act of 1989 was short-lived, as it was struck down by the Supreme Court in United States v. Eichman on June 11, 1990. The Court reaffirmed that flag burning was constitutionally protected free speech, and that the government could not prohibit the expression of an idea simply because society finds it offensive or disagreeable.

The US Supreme Court struck down the 1989 Act in 1990

The US Supreme Court's 1989 ruling in Texas v. Johnson, which upheld the rights of protesters to burn the American flag, was unpopular with the general public and lawmakers. In response, Congress passed the Flag Protection Act of 1989, making flag desecration a federal crime.

However, the constitutionality of the Flag Protection Act was soon contested, and in 1990, the Supreme Court struck down the Act in United States v. Eichman. The Court reaffirmed its previous ruling, holding that flag burning was a protected form of free speech under the First Amendment.

Writing for the majority, Justice William Brennan Jr. stated that "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 itself offensive or disagreeable." The Court's decision in United States v. Eichman thus struck down the Flag Protection Act as unconstitutional and reaffirmed the right to burn the American flag as a form of symbolic and political speech.

The issue of flag burning has remained controversial, with Congress making several attempts to pass a Flag Desecration Amendment to the Constitution, which would make flag burning illegal. However, these efforts have repeatedly failed to attain the required supermajority in the Senate.

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