Flag Desecration
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 Constitution. 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 soiled" flag (U.S.). 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,
White, and O’Connor.
For the majority opinion, Justice Brennan wrote the
following: 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 contempt" (Relin 16). Dissenting, Justice
Stevens,
along with the Chief Justice, Justice White and O’Connor wrote: ...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
prohibition. (Supreme)
Justice Stevens concluded his opinion that by
destroying the symbol of freedom,
the individual communicates a willingness
to destroy those freedoms themselves:
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. (Supreme) 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 meaning" (Apel "ACLU"). 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
constitutional
freedoms. 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 for ratification. 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 is truly constitutional. 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 constitutional
rights. 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 Alliance). 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
Constitution. 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 soiled" flag (U.S.). 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,
White, and O’Connor.
For the majority opinion, Justice Brennan wrote the
following: 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 contempt" (Relin 16). Dissenting, Justice
Stevens,
along with the Chief Justice, Justice White and O’Connor wrote: ...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
prohibition. (Supreme)
Justice Stevens concluded his opinion that by
destroying the symbol of freedom,
the individual communicates a willingness
to destroy those freedoms themselves:
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. (Supreme) 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 meaning" (Apel "ACLU"). 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
constitutional
freedoms. 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 for ratification. 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 is truly constitutional. 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 constitutional
rights. 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 Alliance). 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
Constitution. 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 soiled" flag (U.S.). 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,
White, and O’Connor.
For the majority opinion, Justice Brennan wrote the
following: 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 contempt" (Relin 16). Dissenting, Justice
Stevens,
along with the Chief Justice, Justice White and O’Connor wrote: ...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
prohibition. (Supreme)
Justice Stevens concluded his opinion that by
destroying the symbol of freedom,
the individual communicates a willingness
to destroy those freedoms themselves:
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. (Supreme) 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 meaning" (Apel "ACLU"). 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
constitutional
freedoms. 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 for ratification. 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 is truly constitutional. 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 constitutional
rights. 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 Alliance). 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.
Bibliography
Apel, Warren S. "ACLU Action Report."
Online.
Apel, Warren S. "Chronology to Flag Burning."
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Apel, Warren S. "The Flag Protection Act of 1989."
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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,
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Downs, Donald A. "Texas v. Johnson." The Oxford Companion to
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