Desecration of Stars and Stripes
Is it more important to protect the icons of our country, or to ensure the right to extremely offensive expressions? The issue of flag burning asks America just that question: Should America tolerate, or condemn? Flag burning does seem to be the ultimate act of symbolic protest used to express dissension against the American
but the controversy of flag burning tests the dominion of the First Amendment to the
Constitution. The First Amendment states very simply, Congress shall make no law abridging the freedom of speech or of the press.” (Harvin ) It is widely debatable whether or not the American flag is an object that requires the refuge of legislation.
History of the Flag
The American flag played no significant role in American life until the Civil War. It was displayed only on federal government buildings, forts, and American ships at sea. It would have been unthinkable to fly an American flag at a private home or public school. It simply was not done. Only the outbreak of the Civil War made the American Flag transform into an object of public adoration. The flag suddenly started appearing everywhere from colleges, hotels, stores, to private homes. But the flag’s growing popularity was not accompanied at first by any sense that is should be regarded as a sacred object or vestige( Goldstein).
History of Flag Burning
The Supreme Court has repeatedly upheld the right to desecrate an American flag. However, various legislatures have tried numerous times to criminalize the act of flag burning. Despite their efforts, flag burning is still legal, at least for the time being. Still, the legal future of flag burning is very much in question.
Although it does not deal specifically with flag desecration, the 1931 Supreme Court case of Stromberg v. California was the first to test the extent of the First Amendment as it applies to displaying the flag. Stromberg was arrested, charged, and convicted for displaying a red flag. The Supreme Court set the precedent and ruled that because similar to flag burning, the flag is being used in an expressive manner (Goldstein).
The first epidemic of flag desecration in American history occurred during the late Sixties and early Seventies. Americans were becoming more and more disgusted with the U.S. involvement in Vietnam. This era is commonly known for its radical political activism. Setting the American flag ablaze was a common way for protesters to decry the Vietnam conflict (Mullins). Protesters soon realized that flag burning was an extremely effective way to express many of their anti-American views.
The second Supreme Court case that dealt with using the flag in an expressive manner occurred with the 1974 case of Spence v. Washington. This case was very similar to the earlier case of Stromberg v. California. The case involved a protester who was arrested and convicted for displaying an American flag with an attached peace sign. Just the same as the Stromberg case, the conviction was overturned and deemed unconstitutional because the action was expressive (Goldstein).
The earlier Spence and Stromberg cases both deal with the expressive use of the American flag, but no flag burning itself The first and most notable Supreme Court case to tackle the controversy of flag burning itself was the case of Texas v. Johnson. In 1984, Gregory Lee Johnson participated in a rally dubbed the ‘Republican War Chest Tour,’ which protested U.S. foreign policy. The demonstration climaxed as protesters chanted and Johnson doused the American flag with kerosene and set it on fire (Harvin). This was perhaps the most famous flag ever burned in U.S. history. Johnson was arrested and charged with violating the Texas statue 42.09 Desecration of a Venerated Object. The law states in part, “A person commits an offense if he intentionally or knowingly defaces.. . a state or national flag.” Johnson was fined $2,000 and was sentenced to one year in state prison (Goldstein).
Johnson appealed the decision all the way to the U.S. Supreme Court. Five years later, in 1989, the Supreme Court overturned the conviction by the narrowest of margins, five to four. The ruling stated that “free speech does not end at the spoken or written word.” (Goldstein).
After the controversial ruling in Texas v. Johnson, United States lawmakers wasted little time in passing the Federal Flag Protection Act of 1989. The Flag Protection Act was very similar to the earlier unconstitutional Texas statue. The only difference was that the federal law applied specifically to the American flag, and described a much broader range of offenses (Goldstein).
The Flag Protection Act met its first constitutional challenge very quickly. The 1990 Supreme Court case of United States v. Eichman brought the issue to the forefront once again. The government’s main arguments in favor of the Flag Protection Act was that it did not limit the act of flag desecration based specifically on its expressive content, and that the government has an interest in preserving the physical well-being of the flag. The Supreme Court did not agree and ultimately found the Flag Protection Act unconstitutional, The court disregarded the U.S. government’s argument and ruled nevertheless that the underlying intent of the government was to suppress free speech (Goldstein).
In 1990 Doris Lessin, a leader of the Revolutionary Communist Party, was arrested after burning a flag and yelling insults at bystanders during an anti-America demonstration. Violence subsequently followed and Lessin was charged with aggravated disorderly conduct. She was later charged with a more severe felony, inciting to violence, and ultimately was convicted. The fact Lessin was jailed for flag burning points to a loophole in the current law. Currently, flag desecration can be illegal under some circumstances (Cozic).
Today, flag burning which is communicative in nature is still constitutional. Because the Supreme Court has gained a liberal seat since the Johnson and Eichman rulings, it does not appear that the Supreme Court will change the constitutionality of flag desecration any time soon.
Throughout the 1990’s, Washington politicians have tried repeatedly to circumvent the issue of constitutionality by pushing a proposed flag desecration amendment to amend the constitution itself. Several versions of the amendment have easily passed in
the House of Representatives, only to fail or stall in the Senate. An overwhelming majority of senators and representatives have announced their support for the bill, however other issues have pushed the proposal to the wayside. Amending the constitution is a difficult and lengthy process, and over 99% of proposed amendments fail (Fullwood). Currently, the proposed amendment was stalled in the Senate, and did not clear the Senate in 1998.
The issue of flag burning and desecration is one of the most controversial tests of the right to free speech. The U.S. Supreme Court has repeatedly ruled in favor of the constitutionality of flag burning, but politicians have tried endlessly to change that. One thing seems certain. The only way that flag burning will become illegal is through an amendment to the Constitution.
The issue of flag burning has polarized American politics for over a decade. There is little middle ground with this issue. Americans are generally either for or against the proposed Flag Desecration Amendment.
Opponents of the proposed Flag Desecration Amendment are quite outspoken. The opponents argue that proposal would be the first to set limitations on the First Amendment. Furthermore, they argue that the entire thinking of the proposed amendment is backwards because the proposal places more value in the icon of freedom, than in freedom itself (Smolla 1989).
Not to Burn
It could reasonably be predicted that the proposed amendment would divide Americans directly at political party lines, this is not the case. The Republican Party proudly sponsors the proposed Flag Desecration Amendment and it is no surprise that almost every Republican in Congress has proclaimed their support for the proposed amendment (Citizen’s Flag Alliance). The Republican Party has always been synonymous with limited interpretation of the First Amendment and a push for more laws in recent American politics.
The more surprising reality is that many moderate Democrats have crossed party lines and announced their support for the proposed amendment (Citizen’s Flag Alliance). The main opposition to the proposed amendment comes from the liberal Democrats and the Libertarians.
And where does the American public stand? Various polls indicate that 70%-80% are in favor of the proposed amendment (Citizen’s Flag Alliance). However, when informed as to the first Amendment implications of such an amendment, poll show that American opinions are more swayed and split their opinions at nearly 50% (Fullwood).
The main argument for the Flag Desecration Amendment is that the American flag is not just another piece of cloth (Citizen’s Flag Alliance). The flag is proclaimed by supporters to be a venerated object worthy of legal protection. Los Angeles Dodgers general manager Tommy Lasorda is one of the foremost activists in favor of the proposed Flag Desecration Amendment. Lasorda testified that the Senate can protect an honored symbol that ties every American together, while preserving out 1st Amendment rights, and most supporters of the proposal, disagree with the liberal decision of the Supreme Court that protect flag burning as free speech (Lacy).
Supporters of the proposed Flag Desecration Amendment are also a widespread majority in the every facet of the U.S. Forty-nine of the fifty states legislatures have officially urged congress to pass the proposed amendment. About three of every four U.S. representatives support the measure, and so do about two of every three U.S. Senators. Supporters of the proposal are also four of every five U.S. citizens. Because they form a widespread majority, the supporters believe that the people ’s voice should be heard and the proposed amendment should be ratified (Citizen’s Flag Alliance).
Flag burning has never been a significant tool for political change in America (SmoIIa 1990). At its best, it has been an act used by a few radicals to gain attention. At its worst it could be a major threat to the fabric of America. As every flag is burned, so is the memory of every American who died in its service. Supporters of the proposed amendment, who are the majority, don’ think that it’s much to ask of citizens not to bum a flag. After all, aren’t there a thousand other ways to express ones views?
Both sides of the debate feel very strongly about their cause. That is just what makes America a free country. Everyone has been allowed to express his or her opinion under the First Amendment. Americans have always expressed their opinions, whether it’s by word or by mouth, on television or in newspapers, on T-shirts or bumper stickers, or even by burning the flag.
What do countries like China, North Korea, Vietnam, Iraq, Iran, and Cuba all have in common? If one answered that all these countries are flagrant violators of human rights, that would be correct. If one answered that all these countries have been models of oppressive and totalitarian governments, that too, would be correct. What is lesser known is that all these countries also have laws against flag burning (Cozic). If American politicians have their way, add the United States of America to that list
Politicians don’t care that the Supreme Court has repeatedly upheld the constitutionality of flag burning, although it is nonverbal. The Supreme Court has clearly ruled that flag desecration is a form of communicative speech. Free speech has never ended with the spoken word. Free speech is very clearly protected by the First Amendment (Rehnquist).
The fact that the constitutionality issue had already been decided seemed to anger the power-hungry Washington bureaucrats. Shortly after the Supreme Court made it’s first ruling in favor of flag burning, Congress passed the Flag Protection Act into law. Much the same, the Flag Protection Act was almost immediately deemed unconstitutional. But even that hasn’t stopped Congress almost a decade later.
The Flag Desecration Amendment has been quietly creeping its way through the U.S. legislature unbeknownst to the majority of the American public. The amendment has been led by the right-wing conservative, Orrin Hatch of Utah (Fullwood). Hatch and other politicians are intent on stripping Americans of any rights they still have left. These politicians seem hell-bent on scrapping the values that have built the United States of America. They are intent of pulling a big, fat, asterisk next to the First Amendment (Cozic). The clockwork of the Constitution should not be toyed with for such an insignificant cause.
Americans should remember that governments do not have to take freedom away from citizens all at once. Nazi Germany started very slowly taking away people’s freedom in the thirties. Less than a decade later, political opposition was quashed with legislation, intimidation, and violence. The ultimate results and the speed at which rights are stripped may not be the same in America, but the trends may end up being very similar.
American lawmakers sometimes are very ignorant and have a bad habit of imposing laws against actions that they personally dislike without considering the underlying implication. Flag burning is undoubtedly a contemptuous act against the country. The majority of Americans is at least mildly patriotic and would probably be sickened to witness Old Glory so horribly violated. Because this is the case lawmakers feel it is their moral duty to intervene and criminalize the act. The logic behind the proposed Flag Desecration Amendment is childish at best. Very simply, politicians have decided that they don’t like a specific action, flag desecration, so it should be illegal.
Modern flag burnings are relatively rare in America (Cozic). The revolutionary energy that fueled the flag burning children of the Sixties has nearly disappeared. Modern flag burners are a dying breed. They are no longer associated with the politically acceptable message of peace that swept the nation during the Vietnam conflict. Many flag burners of the 1990’s represent radical political movements, revolutionary factions, or organizations that lie miles to the left or right of conventional bipartisan politics. The simple fact is that many of these flag burners make no secret of the fact that they are anti-American. Americans can label them however they like, but should not overlook the truth. The truth is that flag burners are minority in America.
Minorities are very easy to persecute. Persecution would be the immediate result of the proposed Flag Desecration Amendment. It is necessary to persecute flag burners because they possess unpopular ideas and notions? No matter how revolutionary, anti-American, or unpopular the message behind flag burning is that; Americans should accept, or at least tolerate the expression of minorities. In the past, America has restricted the right of almost every group of minorities. Today, the minorities have different faces, but the underlying issues are the same. America is a country which prides itself on instilling equal respect for everyone, minorities included. There is not a need for a modernized form of legalized persecution called the Flag Desecration Amendment.
Also, overlooked is the obvious reality that flag desecration is entirely a victimless crime. A piece of private property is burned. So what? Is it really necessary to lock these people away? Are they a threat to anyone’s safety? Does America require another burden on the prison system? Of course not! The proposed Flag Desecration Amendment is just a tool used to seek a patriot’s revenge against heretic. There is absolutely no justifiable need.
There are certain freedoms that a free society does not need to impose upon. Countries with as much love for liberty as America should wake up and place its ideals above a mere idol of a flag. Liberty, justice, and the true meaning of the First Amendment will all be lost if politicians have their way. The only things to be gained with the proposed Flag Desecration Amendment are levels of fear and fascism imposed by American lawmakers.
Yes, that’s right. Fascism. By definition, a fascist law is one that pushes patriotism to an extreme or violent extent. The proposed Flag Desecration Amendment doesn’t necessarily push patriotism to a violent extent, but is does force patriotism to an extreme. The Proposed Flag Desecration Amendment would use government as a tool to turn the American flag, a perennial symbol of patriotism, into an untouchable holy object. This is fascism.
Ultimately a flag is a simple piece of cloth with many colors and designs imprinted on it; many Americans have clearly invested this fabric with highly emotionally charged values. Although, flag burning is hardly likely to threaten the flag’s symbolic value, forbidding flag burning will surely diminish the flag’s principles.