Should Flag Burning Be Outlawed?

Should Flag Burning Be Outlawed?
What is the Flag Burning Amendment?

Have you ever heard of the Flag Burning Amendment? It is a constitutional amendment that has been passed numerous times by the House of Representatives and states:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Congress does not appear to wish to concede defeat, and during each term the amendment is passed by the House of Representatives and nixed by the Senate. Most recently, on June 22, 2006 the House voted in favor of the amendment with 286:130 votes while the Senate stopped it with their 66:34 votes. As can easily be seen, the two thirds majority needed to pass the amendment was narrowly avoided. As a side note, it is interesting to note that this term’s vote comes before the November 7th congressional election and may have served to provide political fodder for some rather than to protect Old Glory.

Why Do Some Say We Need a Flag Burning Amendment?

While many hold up Old Glory as the national symbol of a nation that has overcome opposition time and again, others don’t mind the idea of wiping their shoes with the American flag. Yet, did you know that there are many ways of desecrating our flag, which do not even factor into the flag burning discussion in Congress? Someone may choose to walk or spit upon the flag, hang it upside down, and refuse to stand when it is displayed during a special parade.

Why would someone choose to take such drastic steps? It is said that individuals will do so in protest against a domestic or foreign policy, to express one’s racism against the natives of the country, or simply to protest the notion of a national symbol altogether.

While this may sound like a no-brainer to an American national that burning a flag is not an intelligent way to communicate one’ displeasure at the country’s policy, it does carry copious and dire consequences, in that it pitches Congress in direct opposition to not only the Supreme Court, but by extension also limits the power of the First Amendment protection.

Applicable Case Law

No matter what anyone may think, the desecration of the American flag is protected as an expression of free speech under the First Amendment to the United States Constitution. One of the cases heard in conjunction with this protection were Texas v. Johnson, 491 U.S. 397 (1989), which did away with any prohibitions against flag desecration as they are considered to take place as an outcropping of First Amendment speech. At the heart of the case was young Gregory Johnson whose name was on the membership roster for the Revolutionary Communist Party of the United States of America and who burnt an American flag to protest the 1984 policies of Ronald Reagan. After the case wound its way through the various channels of the Texas legal system, the Supreme Court heard it and in a five to four decision the Court clearly indicated that speech is not limited to utterances but can also be understood to be symbolic, such as the desecration of a flag would be. Henceforth, the burning of the American flag could therefore be considered speech that is protected by the First Amendment.

Of course, Congress has since been rather busy trying to get around this Supreme Court ruling. The 1989 Flag Protection Act, for example, sought to get around the ruling. Yet the ink was not quite dry on all the signatures when this very Act was taken to task by Shawn Eichman who burnt an American flag in front of the Capitol so as to protest foreign policy. The ensuing court battle, United States vs. Eichman, 496 U.S. 310 (1990), ended in the Supreme Court’s reaffirmation of the Johnson decision.

So, Should We or Shouldn’t We Amend the Constitution?

Have you ever heard it said that “you cannot legislate intelligence?” This saying comes to mind whenever the flag burning debate heats up.

Living in a free country, do we not retain our freedom by allowing even those whom we personally may perceive to be knuckleheads the right and freedom to express themselves in any way they can? While some may be orally gifted, others are not. While some may enchant their hearers with well thought out arguments and learned discourse, other may choose to go for the shock value, and what is more shocking than desecrating the national symbol or this great nation?

Additionally, is not the language of the proposed amendment just a bit too vague? After all, what constitutes the “physical desecration” of our flag? According the Flag Code, in the District of Columbia this would mean any alteration of the flag with artwork etc. – whether you are the person doing the decorating or the person who does the exhibiting of such a decorated flag. Would it fall under the amendment if the Flag Code were not properly observed with respect to the nighttime illumination of a displayed flag?

What do you think?

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