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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

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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.

Cite this The Issue of Flag Desecration

The Issue of Flag Desecration. (2018, Aug 08). Retrieved from https://graduateway.com/the-issue-of-flag-desecration/

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