Flag Desecration and the Freedom of Speech

Boy Scouts retiring an American flag

The flag of the United States is a powerful symbol. It has been a symbol of military might as it has led countless troops into battle and is now worn on the combat uniforms of American service personnel. The flag was a symbol of victory when it was raised over Iwo Jima on February 25^th, 1945. The American flag served as a symbol of unity during the Civil Rights Era when it flew in Civil Rights Marches, most famously by the lectern in front of the Lincoln Memorial when Martin Luther King, Jr. gave his famous “I have a dream” speech. It has been a symbol of scientific progress as when it was raised on the moon July 21^st, 1969. It serves as a symbol of patriotic pride when flown on Independence Day and other patriotic celebrations. A flag draped over the coffin of a serviceman or woman signifies sacrifice.

Americans rendering honors during the
performance of the National Anthem.

Because of its symbolic significance, the American flag evokes strong emotions from most Americans. When they see the flag, they take pride, and render proper honors, placing their hand over their heart, or rendering a salute if they’re veterans when hearing the National Anthem, watching it pass in parade, or when it is being lowered ceremoniously.

Occasionally, people stand with their arms at their sides or perhaps won’t stand at all, even if they’re able to. Perhaps it is because they have never been taught proper flag etiquette and don’t know they’re supposed to render honors. In many cases, not rendering proper honors to the flag is a form of protest. For these people, though they may love America, the flag is not a positive symbol.

Children on an Air Force base improperly
rendering honors during evening colors.

While these people love the ideals of America, they do not feel that America has lived up to its ideals. The flag, rather than representing America’s achievements represents America’s failures. Failing to render proper honors certainly makes a statement, but unless someone with celebrity status fails to honor the flag, such protests go unnoticed or are ignored.

Often people protest the government in public demonstrations with pickets, shouting slogans, and making speeches. Articles, essays, and books are published criticizing America and its government. Making speeches, writing articles, and petitioning the government sometimes doesn’t make much of an impact if any. To show their displeasure, to make their point, or to just get attention, people occasionally desecrate or even burn the American flag.

Some react strongly to the desecration of the American flag starting counter-protests or even becoming violent. Incidents of flag desecration are historically rare. From 1777 to 1989 there were only 45 recorded cases of flag burning, most of which happened in the 1960s during the Vietnam conflict (Reasons). In spite of flag desecration being so rare, federal, state, and local governments have passed laws on numerous occasions to protect the American flag from desecration. The first of these laws was a federal law called the Uniform Flag Act passed in 1917. Most state and local governments patterned their laws after the 1917 law (State). The language of the Uniform Flag Act is still part of federal law in Title 18, United States Code § 700.

During the United States’ involvement in the Vietnam Conflict during the 1960s, the incidence of flag desecration increased resulting in Congress passing the Flag Protection Act of 1968 (Timeline). Most of the cases regarding flag desecration that came before the Supreme Court were in regards to people either speaking disrespectfully about the flag (Street v. New York), the flag being worn as a piece of clothing (Smith v. Goguen), or physically altering the appearance of the flag without actually damaging it (Spence v. Washington). In each case, the Supreme Court overturned the convictions of the lower courts on first amendment grounds. Flag burning did not come before the court until 1989 (Texas v. Johnson).

In 1984, during the Republican National Convention being held in Dallas, Texas, Gregory Johnson burned a stolen flag in front of the Dallas City Hall as part of an organized protest. He was arrested for violating a Texas law which prohibited the desecration of a venerated object. Johnson was fined $2,000 and sentenced to a year in prison. The case was appealed several times. It was upheld by the Fifth Court of Appeals of Texas, but overturned by the Texas Court of Criminal Appeals on First Amendment Grounds. The State of Texas then appealed to the Supreme Court and the case was heard in 1989 (Texas v. Johnson).

The Supreme Court struck down Texas’ law in a 5 to 4 decision that saw staunch Constitutional conservative and Reagan appointee, Antonin Scalia, along with two other known conservatives, Harry Blackmun, a Nixon appointee, and Anthony Kennedy another Reagan appointee joining the majority. Because of the strong conservative presence on the court at the time (6-3), the decision came as a surprise to many (Lubet). Congress responded immediately with the Flag Protection Act of 1989. The Supreme Court overturned this law as well in 1990 when it heard the case, United States v. Eichman, in a 5 to 4 decision that mirrored the Supreme Court’s decision in Texas v. Johnson (U.S. v. Eichman).

(Carrol)

With flag protection laws overturned, politicians have tried many times to pass differing legislation and even a constitutional amendment. Some polls indicate that a majority of Americans support a constitutional amendment to ban flag desecration, each attempt has failed in congress (Carroll). Considering the language of the First Amendment and the Supreme Court’s interpretation going back more than a century, it seems like this should be a settled issue and yet, there still seems to be a great deal of confusion and debate. This also isn’t a right/left, conservative/liberal, Republican/Democrat issue with neatly divided lines. While conservatives typically are in favor of protecting the flag, as demonstrated above, conservatives on the Supreme Court were instrumental in overturning flag protection laws on first amendment grounds. In 2005, Utah Republican Senator, Robert Bennett introduced the Flag Protection Act of 2005. While it was unsurprising that a Republican introduced the Flag Protection Act, what many found very surprising was that it had four Democrat cosponsors, three of whom are well known progressive liberals—Hillary Clinton, Barbara Boxer, and Mark Pryor (United States).

In order to really understand if banning flag desecration is appropriate or even necessary, the arguments in favor of protecting the flag must be taken into consideration. Some of the main arguments in defense of protecting the flag can be found in the Congressional findings listed in the Flag Protection Act of 2005, but others will be considered as well.

The Congressional findings make four arguments in favor of the Flag Protection Act: 1.) The flag of the United States is a symbol of the nation and its values, 2.) The Bill of Rights should not be amended to restrict freedom of speech, 3.) abuse of the flag causes distress to some people and such actions can amount to fighting words, and 4.) destruction of the flag can be used to incite violence instead of just making a political statement (United States).

(@realDonaldTrump)

Many of these points can be conceded, but also countered with further information that favor flag desecration as protected free speech. First, the flag does represent the United States as well as the “republic for which it stands” as stated in the Pledge of Allegiance. The definition of the American republic is laid out in the Constitution of the United States which includes the Bill of Rights and the first amendment. The first amendment guarantees the right to freedom of speech and, as the Supreme Court has found time and again, freedom of expression which included disrespectful language about, disrespectful use of, and defacing and destruction of the American flag (What). The American flag represents the freedom of its own destruction as a form of protest and expression. Second, the Bill of Rights should not be amended and yet, that is exactly what the Flag Protection Act, the Flag Desecration Amendment, and similar legislation seeks to do.

Law professor and self-described liberal, Steven Lubet claims in his essay, Banning the Desecration of the American Flag Would Not Be Censorship, that the Flag Desecration Amendment “… would not limit freedom of speech very much at all. No words or beliefs would be prohibited, no opinions would be suppressed.” This is another point that must be conceded. However, he goes on to point out:

“The classic ‘slippery slope’ argument, a staple of liberal analysis, posits that small restrictions may lead to bigger ones. But in this case, that is not true. It is tremendously difficult to amend the Constitution—requiring a two-thirds vote in each house of Congress and ratification by three-quarters of the states—so it is extremely unlikely that the flag amendment will be quickly followed by others.”

The problem with this line of thinking is that the Constitution doesn’t need to be amended for freedom of speech and expression to be abridged. History has shown that all it takes is complicity between the three branches of government to abridge first amendment rights. In 1798, Congress passed, President John Adams signed, and the Supreme Court upheld the Alien and Sedition Acts. These laws prohibited any criticism of the government whether that criticism was spoken, written, or implied. This was only seven years after the Bill of Rights was added to the Constitution! Three of the laws were repealed under Thomas Jefferson’s administration, but the fourth, the Alien Enemies Act remained in effect and was used by President Woodrow Wilson as a justification to silence protest against entering World War I as well as jailing political opponents and journalists who criticized him in the media. The administration of President Franklin Roosevelt also refernced the Alien Enemies Act to justify the internment of American citizens of Japanese descent as well as deporting American citizens of Japanese, German, and Italian descent during World War II. If all those things can be done without an amendment to the Constitution, then an amendment that is frankly injurious the first amendment would be the gateway drug to fascism.

Third, the Flag Protection legislation seeks to prevent acts that “amount to ‘fighting words’” or can be considered an incitement to violence. The term “fighting words” as used by politicians stems from a 1942 Supreme Court Case, Chaplinsky v. New Hampshire where a man was arrested for verbally assaulting a Jehovah’s Witness who was street preaching. While the Supreme Court upheld the arrest, the Supreme Court has narrowed the meaning of the terminology and courts tend to use the term “incitement” instead. It is hard to imagine an instance where simply desecrating the flag would incite violence unless the flag desecrator or their opponent had already used inciting language. In that case, there are already laws that can be used to curb such acts and there is no need to abridge the freedom of speech.

Lubet also argues in his essay that banning flag desecration would actually give such acts more weight. If a person is willing to go to jail as part of their speech or expression, that makes the message all the more powerful. Again, that is certainly true, but there are rights we now take for granted that were once oppressively regulated. John Bunyan, author of the Christian allegorical classic, Pilgrim’s Progress, spent 12 years in jail for preaching the gospel without a license from the Church of England (Deal v.). Many Colonial printing presses were run underground because a license from the crown was required. Colonial printers caught printing without a license were arrested and jailed, and their presses were confiscated or destroyed (Petersen 10-12). Thanks to the first amendment, both practices are now protected under the first amendment. If we’re going to ban flag desecration, why not require preachers and printers to get special government permission? That’s working really well in China.

Freedom cannot survive when the government can ban expression with which it disagrees. America was built on speech and expression that was offensive to the government. Colonial Americans wrote speeches against the King of England and his agents in the colonies, they operated underground (illegal) printing presses in protest of stamp taxes, they burned the King in Effigy all of which were illegal. Making offensive activities illegal doesn’t prevent them from occurring. Sometimes, making certain activities illegal makes them more thrilling. One only needs to consider the disastrous effects of the Prohibition Era ushered in by the eighteenth amendment or the violent and ineffective war on drugs. Drugs and alcohol actually have negative health effects, but what negative side effect is there to desecrating the flag? People get angry, some special snowflakes get their feelings hurt, and even more rarely the flag desecrator is assaulted. Flag desecration would become the ultimate victimless crime, but a crime nevertheless. With America’s out of control debt, homelessness, unemployment, the threat of terrorism, and a slew of other issues, the matter of flag desecration pales in comparison. Government officials and politicians need to focus on what is truly important before they consider abridging freedom of expression.

Works Cited

Carroll, Joseph. “Public Support for Constitutional Amendment on Flag Burning.” Gallup. Gallup 2006. Accessed 29 Nov. 2016, www.gallup.com/poll/23524/public-support-constitutional-amendment-flag-burning.aspx.

Deal, William S. “Introduction.” John Bunyan: The Tinker of Bedford, Good News Publishers 1977.

Lubet, Steven. “Banning the Desecration of the American Flag Would Not Be Censorship.” Censorship 2007, Opposing Viewpoints in Context. Accessed 25 Nov 2016.

Petersen, Christine. “Permission to Print.” The Printer, Marshall Cavendish Benchmark, 2011.

@realDonaldTrump. “Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!” Twitter, 29 Nov. 2016, 3:55a.m., twitter.com/realDonaldTrump/status/803567993036754944.

“Reasons to Oppose the Flag Desecration Amendment.” American Civil Liberties Union. ACLU 2016. Accessed 25 Nov 2016, www.aclu.org/other/reasons-oppose-flag-desecration-amendment.

 “State flag-protection laws.” First Amendment Center. First Amendment Center 2002. Accessed 25 Nov 2016, www.firstamendmentcenter.org/state-flag-protection-laws.

Supreme Court. Chaplinsky v. State of New Hampshire. 9 Mar. 1942.

Supreme Court. Sidney Street v. State of New York. 21 Apr. 1969.

Supreme Court. Smith v. Goguen. 25 Mar. 1974.

Supreme Court. Spence v. Washington. 25 June 1974.

Supreme Court. Texas v. Gregory Lee Johnson. 21 June 1989.

Supreme Court. United States v. Shawn Eichman et al. 11 June 1990.

“Timeline of Flag Desecration Issues.” ushistory.org. Independence Hall Association 1999-2016. Accessed 25 Nov 2016, www.ushistory.org/betsy/more/desecration.htm.

United States Cong. Senate. Senate Judiciary Committee. Flag Protection Act of 2005. 109th Cong. United States Congress. Accessed 26 Nov. 2016, www.congress.gov/bill/109th-congress/senate-bill/1911/actions.

“What Does Free Speech Mean?” United States Courts. Administrative Office of the U.S. Courts. Accessed 26 Nov. 2016. www.uscourts.gov/about-federal-courts/educational-resources.