Flag Desecration Essay Example For Students

Flag Desecration Essay The issue of flag desecration has been and continues to be ahighly controversial issue; on the one side there are those whobelieve that the flag is a unique symbol for our nation whichshould be preserved at all costs, while on the other are thosewho believe that flag burning is a form of free speech and thatany legislation designed to prevent this form of expression iscontrary to the ideals of the First Amendment to ourShawn Eichman, as well as the majority of the United StatesSupreme Court, is in the latter of these groups. Many citizensbelieve that the freedom of speech granted to them in the FirstAmendment means that they can express themselves in any mannerthey wish as long as their right of expression does not infringeon the rights of others; others, however, believe that there areexceptions to this right of speech. Such constitutional issuesneed to be worked out by the Supreme Court, which uses its powersof constitutional interpretation and judicial review to outlinethe underpi nnings of the Constitution and interpret the law. The case which acted as an impetus for Eichmans actions wasthat of Texas v. Johnson. In 1984, in Dallas, Gregory Johnson,a member of the Revolutionary Communist Youth Brigade, a Maoistssociety, publicly burned a stolen American flag to protests there-nomination of Ronald Reagan as the Republican candidate (Levy217). The police consequently arrested Johnson not for hismessage but for his manner in delivering it; he had violated aTexas statute that prohibited the desecration of a veneratedobject by acts that the offender knows will seriously offend onor more persons (Downs 83). Johnson had hoped to captureAmericas attention with this burning, and he did; however, hisprotest earned him more than a moment in the national spotlight. Under Texass 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 Courtconsidered for the first time whether the F irst Amendmentprotects desecration of the United States flag as a form ofsymbolic speech. A sharply divided Court had previously dealtwith symbolic speech cases that involved alleged misuses of theflag. While the Court had ruled in favor of the defendants inthose 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 flagdesecration (Downs 868). The court ruled in favor of Johnson(5-4), believing that there was no evidence that Johnsonsexpression threatened an imminent disturbance of the peace, andthat the statutes protection of the integrity of the flag as asymbol was improperly directed at the communicative messageentailed in flag burning (Downs 868). Justice Brennan concludedby saying, We do not consecrate the flag by punishing itsdesecration, for in doing so we dilute the freedom that thischerished emblem represents (Witt 409). Reacting to this ruling, the Untied St ates Congress soughtto pass legislation that would overturn it. The Flag ProtectionAmendment was introduced and then voted down, but then the FlagProtection Act was passed in both houses. President Bush allowedthis act to pass without his signature, an expression of hispreference for a Constitutional amendment (Apel FlagProtection). The Act criminalized the conduct of anyone whoknowingly mutilates, defaces, physically defiles, burns,maintains on the floor or ground, or tramples upon a UnitedStates flag, except conduct related to the disposal of a worn orOn 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 unconstitutionalunder Texas v. Johnson, but prosecuted anyways, hoping to get thecourt to reverse its decision. The court decided that flagdesecration is a form of political expression that is protectedunder the First Amendment rights to free speech, and ruled infavor of Eichman by a vote of 5 to 4, thus nullify the FlagProtection 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 theAlthough the Flag Protection Act contains no explicitcontent-based limitation on the scope of prohibitedconduct, it is nevertheless clear that the Governments asserted interest is related to the suppression of free expressionMoreover, the preciselanguage of the Acts prohibitions confirms Congressinterest in the communicative impact of flag destructionIf there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an ideasimply because society finds the idea offensive ordisagreeable. Punishing desecration of the flag dilutes the very freedom that makes this emblem sorevered, and worth revering. (Supreme) According to Justice Anthony S tevens, The landmark decision wassimply a pure command of the Constitution. It is poignant butfundamental that the flag protects even those who hold it inDissenting, Justice Stevens, along with the Chief Justice,It is equally well settled that certain methods ofexpression may be prohibited if(a) the prohibition issupported by a legitimate societal interest this isunrelated to suppression of the ideas the speakerdesires to express; (b) the prohibition does not entailany interference with the speakers freedom to expressthose ideas by other means; and (c) the interest inallowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting theJustice Stevens concluded his opinion that by destroying thesymbol of freedom, the individual communicates a willingness toBy burning the embodiment of Americas collectivecommitment to freedom and equality, the flag burnercharges that the majority has forsaken the commitmentt hat continued respect for the flag isnothing more than hypocrisy. Such a charge may be madeeven if the flag burner loves the country and zealouslypursues 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 ACLUsNational Washington Office showed her support when she said, TheFirst Amendment is this countrys first principle. It is acritical part of what has made our country uniquely free. Wehave been strengthened, not weakened, by the sweep of itslanguage and by the Supreme Courts adherence to its trueMany anti-flag desecration groups, particularly theCitizens Flag Alliance (CFA), were outraged by this ruling. These organizations petitioned Congress to reintroduce the FlagProtection Amendment. Since the ratification of the Constitutionin 1789, some 10,000 attempts have been made to amend it. Theyhave included ideas such as eliminating the Senate, andrenaming the country the United States of Earth. But never inthe nations history has anyone tried to amend the Bill ofRights. (Relin 18) To do so would be a dramatic step in that itcould pave the way for further future limitations on o urFor an amendment to the Constitution to be made, The houseand the Senate have to propose (each by 2/3 vote) exactly thesame text before the amendment is open for ratification by thestates (Apel Hasbrouck). If the amendment (to the FirstAmendment) is passed in both chambers, it then goes to the statesIn 1990, both the House and Senate failed to muster therequired two-thirds majority to pass the Flag ProtectionAmendment (Citizens). In 1995, however, the amendment clearedthe House by a vote of 312-120. This Senate Joint Resolution 31(S.J. Res. 31) was also passed by the Senate Judiciary Committeeby a vote of 12-6, but was then rejected by the Senate by only 3votes. In February of 1998, Senators Orrin Hatch (R-UT) and MaxCleland (D-GA) reintroduced the amendment as S.J. Res. 40, but itwas decided that there was not enough time left in the term tovote on the amendment. Most recently, in March of 1999, the FlagProtection Amendment was reintroduced once again as S. J. Res. 14. Once again, it was passed in the House and by the SenateJudiciary Committee, but to date has not become ratified. Among those against the original amendment in 1990 wereGeorge Mitchell, Tom Daschle, Patrick Leahy, Dale Bumpers, DavidBoren, Howard Metzenbaum, Barbara Mikulski, Jeff Bingaman, BillBradley, Paul Simon, and Christopher Dodd. Perhaps the mostardent opponent to the amendment was Ted Kennedy. In an eloquentspeech 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 strengthof our democracy than the first amendments guaranteeof freedom of speech. Let us not start down thisdisastrous road of restricting the majestic scope ofthe first amendment by picking the kinds of speech thatare to be permitted in our society. (Ted) He goes on to mention that this constitutional amendment mightirreparably damage the separation of powers that has protectedour constitutional freedoms throughout historybecause judgesinsulated from public pressure can best evaluate the claims of unpopular minorities. Kennedy is saying here that sinceCongress can be greatly influenced by special interest groups,such as the Citizens Flag Alliance, it is the responsibility ofthe judiciary branch of government to objectively rule as to whatIf the Senate amends the Bill of Rights for the first timein history by passing the Flag Protection Amendment, who knowswhere they would stop. Every nation in the world has a flag,and many of them, including some democracies, have laws againstdesecrating their flag. No other nation has a Bill of Rights(Levy 219). The year 1991 marked the 200th anniversary of itsratification, and, in my opinion, it requires no limitingamendment. The American people understand that they are notthreatened by flag burners, and the American people prefer theFirst Amendment undiluted. They understand that imprisoning afew extremists is not what patriotism is all about; forcedpatriotism is surely not American. Rep. Gary Ackerman (D-NewYork) expressed these ideas whe n he said, If a jerk burns a flag, America is not threatened. Ifa jerk burns a flag, democracy is not under siege. IfA jerk burns a flag, freedom is not at risk and we arenot threatenedwe are offended; and to change ourConstitution because someone offends us is, in itself,unconscionable. (Apel Chronology). Flag burning may be all wrong, but a lot of wrongheadedspeech is protected by the First Amendment. The Bill or Rightsis a wonderfully terse, eloquent, and effective summation ofindividual freedoms, and there is no need to add except for flagburners. That exception, as the Court majority in United Statesv. Eichman realized, might show that the nation is so lacking infaith in itself that it permits the Johnsons and Eichmans todiminish the flags meaning. They are best treated, as Brennanargued, by saluting the flag that they burn or by ignoring themcontemptuously, not by paving the way for an assault on ourIn this research, I noted that all of the proponents for theEichman decision w ho were also against the Flag ProtectionAmendment used very logical, well-structured arguments, whilethose dissenting and in support of the amendment to anamendment use mostly emotional arguments and focus on therespect owed to all those who have died in the militaryprotecting the nation. These in the latter group seem usually tobe associated with the military themselves (e.g. Major GeneralPatrick H. Brady is the Board Chairman of the Citizens FlagI entirely agree with the Supreme Courts ruling in thiscase. Justice Stevens argued that flag-burning was not anacceptable form of expression because people could convey theirviews by other means; he seems to have failed to realize,however, that it is not the right of the government to limit oneto a certain means of voicing his or her opinions. Flag burningis a form of protest which rarely occurs and which does littlebut offend others. Perhaps a law such as the Flag ProtectionAct, while unconstitutional, is permissible as a means ofsilenci ng organization such as the CFA, but an amendment to ourBill of Rights if certainly going too far. The issue of flag desecration has been and continues to be ahighly controversial issue; on the one side there are those whobelieve that the flag is a unique symbol for our nation whichshould be preserved at all costs, while on the other are thosewho believe that flag burning is a form of free speech and thatany legislation designed to prevent this form of expression iscontrary to the ideals of the First Amendment to ourShawn Eichman, as well as the majority of the United StatesSupreme Court, is in the latter of these groups. Many citizensbelieve that the freedom of speech granted to them in the FirstAmendment means that they can express themselves in any mannerthey wish as long as their right of expression does not infringeon the rights of others; others, however, believe that there areexceptions to this right of speech. Such constitutional issuesneed to be worked out by the Supreme Co urt, which uses its powersof constitutional interpretation and judicial review to outlinethe underpinnings of the Constitution and interpret the law. The case which acted as an impetus for Eichmans actions wasthat of Texas v. Johnson. In 1984, in Dallas, Gregory Johnson,a member of the Revolutionary Communist Youth Brigade, a Maoistssociety, publicly burned a stolen American flag to protests there-nomination of Ronald Reagan as the Republican candidate (Levy217). The police consequently arrested Johnson not for hismessage but for his manner in delivering it; he had violated aTexas statute that prohibited the desecration of a veneratedobject by acts that the offender knows will seriously offend onor more persons (Downs 83). Johnson had hoped to captureAmericas attention with this burning, and he did; however, hisprotest earned him more than a moment in the national spotlight. Under Texass 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 Courtconsidered for the first time whether the First Amendmentprotects desecration of the United States flag as a form ofsymbolic speech. A sharply divided Court had previously dealtwith symbolic speech cases that involved alleged misuses of theflag. While the Court had ruled in favor of the defendants inthose 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 flagdesecration (Downs 868). The court ruled in favor of Johnson(5-4), believing that there was no evidence that Johnsonsexpression threatened an imminent disturbance of the peace, andthat the statutes protection of the integrity of the flag as asymbol was improperly directed at the communicative messageentailed in flag burning (Downs 868). Justice Brennan concludedby saying, We do not consecrate the flag by punishing itsdesecration, for in doing so we dilute the freedom that thischerished emblem represents (Witt 409). Reacting to this ruling, the Untied States Congress soughtto pass legislation that would overturn it. The Flag ProtectionAmendment was introduced and then voted down, but then the FlagProtection Act was passed in both houses. President Bush allowedthis act to pass without his signature, an expression of hispreference for a Constitutional amendment (Apel FlagProtection). The Act criminalized the conduct of anyone whoknowingly mutilates, defaces, physically defiles, burns,maintains on the floor or ground, or tramples upon a UnitedStates flag, except conduct related to the disposal of a worn orOn 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 unconstitutionalunder Texas v. Johnson, but prosecuted anyways, hoping to get thecourt to reverse its decision. The court decided that flagdesecration is a form of poli tical expression that is protectedunder the First Amendment rights to free speech, and ruled infavor of Eichman by a vote of 5 to 4, thus nullify the FlagProtection 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 theAlthough the Flag Protection Act contains no explicitcontent-based limitation on the scope of prohibitedconduct, it is nevertheless clear that the Governments asserted interest is related to the suppression of free expressionMoreover, the preciselanguage of the Acts prohibitions confirms Congressinterest in the communicative impact of flag destructionIf there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an ideasimply because society finds the idea offensive ordisagreeable. Punishing desecration of the flag dilutes the very fr eedom that makes this emblem sorevered, and worth revering. (Supreme) According to Justice Anthony Stevens, The landmark decision wassimply a pure command of the Constitution. It is poignant butfundamental that the flag protects even those who hold it inDissenting, Justice Stevens, along with the Chief Justice,It is equally well settled that certain methods ofexpression may be prohibited if(a) the prohibition issupported by a legitimate societal interest this isunrelated to suppression of the ideas the speakerdesires to express; (b) the prohibition does not entailany interference with the speakers freedom to expressthose ideas by other means; and (c) the interest inallowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting theJustice Stevens concluded his opinion that by destroying thesymbol of freedom, the individual communicates a willingness toBy burning the embodiment of Americas collectivecommi tment to freedom and equality, the flag burnercharges that the majority has forsaken the commitmentthat continued respect for the flag isnothing more than hypocrisy. Such a charge may be madeeven if the flag burner loves the country and zealouslypursues the ideals that the country claims to honor. What I Learned In Psychology Class EssayGroups such as the American Civil Liberties Union (ACLU)praised the ruling. Laura W. Murphy, Director of the ACLUsNational Washington Office showed her support when she said, TheFirst Amendment is this countrys first principle. It is acritical part of what has made our country uniquely free. Wehave been strengthened, not weakened, by the sweep of itslanguage and by the Supreme Courts adherence to its trueMany anti-flag desecration groups, particularly theCitizens Flag Alliance (CFA), were outraged by this ruling. These organizations petitioned Congress to reintroduce the FlagProtection Amendment. Since the ratification of the Constitutionin 1789, some 10,000 attempts have been made to amend it. Theyhave included ideas such as eliminating the Senate, andrenaming the country the United States of Earth. But never inthe nations history has anyone tried to amend the Bill ofRights. (Relin 18) To do so would be a dramatic step in that itcould pave t he way for further future limitations on ourFor an amendment to the Constitution to be made, The houseand the Senate have to propose (each by 2/3 vote) exactly thesame text before the amendment is open for ratification by thestates (Apel Hasbrouck). If the amendment (to the FirstAmendment) is passed in both chambers, it then goes to the statesIn 1990, both the House and Senate failed to muster therequired two-thirds majority to pass the Flag ProtectionAmendment (Citizens). In 1995, however, the amendment clearedthe House by a vote of 312-120. This Senate Joint Resolution 31(S.J. Res. 31) was also passed by the Senate Judiciary Committeeby a vote of 12-6, but was then rejected by the Senate by only 3votes. In February of 1998, Senators Orrin Hatch (R-UT) and MaxCleland (D-GA) reintroduced the amendment as S.J. Res. 40, but itwas decided that there was not enough time left in the term tovote on the amendment. Most recently, in March of 1999, the FlagProtection Amendment was reintroduc ed once again as S. J. Res. 14. Once again, it was passed in the House and by the SenateJudiciary Committee, but to date has not become ratified. Among those against the original amendment in 1990 wereGeorge Mitchell, Tom Daschle, Patrick Leahy, Dale Bumpers, DavidBoren, Howard Metzenbaum, Barbara Mikulski, Jeff Bingaman, BillBradley, Paul Simon, and Christopher Dodd. Perhaps the mostardent opponent to the amendment was Ted Kennedy. In an eloquentspeech 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 strengthof our democracy than the first amendments guaranteeof freedom of speech. Let us not start down thisdisastrous road of restricting the majestic scope ofthe first amendment by picking the kinds of speech thatare to be permitted in our society. (Ted) He goes on to mention that this constitutional amendment mightirreparably damage the separation of powers that has protectedour constitutional freedoms throughout historybecause judgesinsulated from public pressure can best evaluate the claims of unpopular minorities. Kennedy is saying here that sinceCongress can be greatly influenced by special interest groups,such as the Citizens Flag Alliance, it is the responsibility ofthe judiciary branch of government to objectively rule as to whatIf the Senate amends the Bill of Rights for the first timein history by passing the Flag Protection Amendment, who knowswhere they would stop. Every nation in the world has a flag,and many of them, including some democracies, have laws againstdesecrating their flag. No other nation has a Bill of Rights(Levy 219). The year 1991 marked the 200th anniversary of itsratification, and, in my opinion, it requires no limitingamendment. The American people understand that they are notthreatened by flag burners, and the American people prefer theFirst Amendment undiluted. They understand that imprisoning afew extremists is not what patriotism is all about; forcedpatriotism is surely not American. Rep. Gary Ackerman (D-NewYork) expressed these ideas whe n he said, If a jerk burns a flag, America is not threatened. Ifa jerk burns a flag, democracy is not under siege. IfA jerk burns a flag, freedom is not at risk and we arenot threatenedwe are offended; and to change ourConstitution because someone offends us is, in itself,unconscionable. (Apel Chronology). Flag burning may be all wrong, but a lot of wrongheadedspeech is protected by the First Amendment. The Bill or Rightsis a wonderfully terse, eloquent, and effective summation ofindividual freedoms, and there is no need to add except for flagburners. That exception, as the Court majority in United Statesv. Eichman realized, might show that the nation is so lacking infaith in itself that it permits the Johnsons and Eichmans todiminish the flags meaning. They are best treated, as Brennanargued, by saluting the flag that they burn or by ignoring themcontemptuously, not by paving the way for an assault on ourIn this research, I noted that all of the proponents for theEichman decision w ho were also against the Flag ProtectionAmendment used very logical, well-structured arguments, whilethose dissenting and in support of the amendment to anamendment use mostly emotional arguments and focus on therespect owed to all those who have died in the militaryprotecting the nation. These in the latter group seem usually tobe associated with the military themselves (e.g. Major GeneralPatrick H. Brady is the Board Chairman of the Citizens FlagI entirely agree with the Supreme Courts ruling in thiscase. Justice Stevens argued that flag-burning was not anacceptable form of expression because people could convey theirviews by other means; he seems to have failed to realize,however, that it is not the right of the government to limit oneto a certain means of voicing his or her opinions. Flag burningis a form of protest which rarely occurs and which does littlebut offend others. Perhaps a law such as the Flag ProtectionAct, while unconstitutional, is permissible as a means ofsilenci ng organization such as the CFA, but an amendment to ourBill of Rights if certainly going too far. Bibliography:Works CitedApel, 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. NewYork: Oxford University Press, 1999: 83. Downs, Donald A. Texas v. Johnson. The Oxford Companion tothe Supreme Court of the United States. New York:Oxford University Press, 1992: 868-869. House Panel Approves Flag-Burning Measure. CongressionalQuarterly Weekly Report 17 May, 1997: 1444. Levy, Leonard W. Flag Desecration. Encyclopedia of theAmerican Constitution. New York: MacMillan Publishing Company, 1992: 217-220. Relin, David Oliver. A Burning Question. Scholastic Update21 Sept, 1990: 16-19. Supreme Court of the United States. Online. Ted Kennedy. Online. U.S. Supreme CourtUnited States v. Eichman. Online. Witt, Elden. Protest and the Flag. Congressional Quarterlys Guide to the Supreme Court. WashingtonD.C.: Congressional Quarterly Inc., 1990: 409.