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The Issue of Flag Desecration

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    The issue of flag desecration has been and continues to be a

    highly controversial 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

    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 on

    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

    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,

    For the majority opinion, Justice Brennan wrote the

    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. (Supreme)

    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

    Dissenting, Justice Stevens, along with the Chief Justice,

    …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

    Justice Stevens concluded his opinion that by destroying the

    symbol of freedom, the individual communicates a willingness to

    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.

    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

    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

    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

    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. (Ted)

    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

    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). The year 1991 marked the 200th anniversary of its

    ratification, and, in my opinion, it requires no limiting

    amendment. The American people understand that they are not

    threatened by flag burners, and the American people prefer the

    First Amendment undiluted. They understand that imprisoning a

    few extremists is not what patriotism is all about; forced

    patriotism is surely not American. Rep. Gary Ackerman (D-New

    York) expressed these ideas when he said,

    If a jerk burns a flag, America is not threatened. If

    a jerk burns a flag, democracy is not under siege. If

    A jerk burns a flag, freedom is not at risk and we are

    not threatened…we are offended; and to change our

    Constitution because someone offends us is, in itself,

    unconscionable. (Apel Chronology).

    Flag burning may be all wrong, but a lot of wrongheaded

    speech is protected by the First Amendment. The Bill or Rights

    is a wonderfully terse, eloquent, and effective summation of

    individual freedoms, and there is no need to add “except for flag

    burners.” That exception, as the Court majority in United States

    v. Eichman realized, might show that the nation is so lacking in

    faith in itself that it permits the Johnsons and Eichmans to

    diminish the flag’s meaning. They are best treated, as Brennan

    argued, by saluting the flag that they burn or by ignoring them

    contemptuously, not by paving the way for an assault on our

    In this research, I noted that 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

    I entirely agree with the Supreme Court’s ruling in this

    case. 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 if certainly going too far.

    The issue of flag desecration has been and continues to be a

    highly controversial 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

    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 on

    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

    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,

    For the majority opinion, Justice Brennan wrote the

    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. (Supreme)

    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

    Dissenting, Justice Stevens, along with the Chief Justice,

    …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

    Justice Stevens concluded his opinion that by destroying the

    symbol of freedom, the individual communicates a willingness to

    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.

    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

    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

    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

    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. (Ted)

    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

    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). The year 1991 marked the 200th anniversary of its

    ratification, and, in my opinion, it requires no limiting

    amendment. The American people understand that they are not

    threatened by flag burners, and the American people prefer the

    First Amendment undiluted. They understand that imprisoning a

    few extremists is not what patriotism is all about; forced

    patriotism is surely not American. Rep. Gary Ackerman (D-New

    York) expressed these ideas when he said,

    If a jerk burns a flag, America is not threatened. If

    a jerk burns a flag, democracy is not under siege. If

    A jerk burns a flag, freedom is not at risk and we are

    not threatened…we are offended; and to change our

    Constitution because someone offends us is, in itself,

    unconscionable. (Apel Chronology).

    Flag burning may be all wrong, but a lot of wrongheaded

    speech is protected by the First Amendment. The Bill or Rights

    is a wonderfully terse, eloquent, and effective summation of

    individual freedoms, and there is no need to add “except for flag

    burners.” That exception, as the Court majority in United States

    v. Eichman realized, might show that the nation is so lacking in

    faith in itself that it permits the Johnsons and Eichmans to

    diminish the flag’s meaning. They are best treated, as Brennan

    argued, by saluting the flag that they burn or by ignoring them

    contemptuously, not by paving the way for an assault on our

    In this research, I noted that 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

    I entirely agree with the Supreme Court’s ruling in this

    case. 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 if certainly going too far.

    The issue of flag desecration has been and continues to be a

    highly controversial 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

    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 on

    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

    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,

    For the majority opinion, Justice Brennan wrote the

    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. (Supreme)

    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

    Dissenting, Justice Stevens, along with the Chief Justice,

    …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

    Justice Stevens concluded his opinion that by destroying the

    symbol of freedom, the individual communicates a willingness to

    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.

    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

    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

    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

    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. (Ted)

    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

    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). The year 1991 marked the 200th anniversary of its

    ratification, and, in my opinion, it requires no limiting

    amendment. The American people understand that they are not

    threatened by flag burners, and the American people prefer the

    First Amendment undiluted. They understand that imprisoning a

    few extremists is not what patriotism is all about; forced

    patriotism is surely not American. Rep. Gary Ackerman (D-New

    York) expressed these ideas when he said,

    If a jerk burns a flag, America is not threatened. If

    a jerk burns a flag, democracy is not under siege. If

    A jerk burns a flag, freedom is not at risk and we are

    not threatened…we are offended; and to change our

    Constitution because someone offends us is, in itself,

    unconscionable. (Apel Chronology).

    Flag burning may be all wrong, but a lot of wrongheaded

    speech is protected by the First Amendment. The Bill or Rights

    is a wonderfully terse, eloquent, and effective summation of

    individual freedoms, and there is no need to add “except for flag

    burners.” That exception, as the Court majority in United States

    v. Eichman realized, might show that the nation is so lacking in

    faith in itself that it permits the Johnsons and Eichmans to

    diminish the flag’s meaning. They are best treated, as Brennan

    argued, by saluting the flag that they burn or by ignoring them

    contemptuously, not by paving the way for an assault on our

    In this research, I noted that 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

    I entirely agree with the Supreme Court’s ruling in this

    case. 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 if certainly going too far.

    Works Cited

    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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