Hilbert College	Issues in Mass Communication: The Flag Burning Debate	- Home - Students - Tutorials - - Student Papers -
(Note: This paper was written at the University of South Carolina) by: Tiffany Jackson 23 November 1999 The First Amendment of the Bill of Rights to the Constitution of the United States of America declares that, among other provisions, Congress shall make no laws abridging the freedom of speech. This ideal is a cornerstone on which the American nation has been founded. Our forefathers were seeking to escape a system based on government intervention into many aspect of the citizen's lives; political persecution, frivolous laws, religious suppression and restriction of speech and press are a few examples. Upon arriving to the 'new land' they crafted this country and its Constitution in a way they hoped would insure a free exchange of ideals, so that our government would never mimic that which they had escaped from ("On the flag burning amendment"). As fate would have it this First Amendment, in addition to most others, has been put to the test over the course of American history. The Supreme Court, our nation's highest judges, have been forced to make many complicated interpretations of the statute on the case by case basis. This task is incredibly difficult because it seeks to insure that each individual's rights are safeguarded while insuring everyone is provided with the right to express themselves freely. An action that is still heatedly debated today came to the nation's attention in 1897 when the American Flag Association was formed to promote flag protection legislation. It sought to keep the public from damaging or destroying the symbolic banner and beginning in 1897 each state would eventually pass a statute making it a crime to defile the American flag ("Burning issue: The flag desecration amendment"). In 1966 these laws were challenged by Sidney Street, a black American who torched the flag in protest of the lack of protection provided for James Meredith, a civil rights leader, by the U.S. government. He was convicted under the state's statutes but carried the case all the way to the Supreme Court because he believed the indictment to be unconstitutional (Case Law). This case sparked a debate over whether or not Street's actions should qualify as speech that would be protected the First Amendment. Some scholars say "They [people] look at a picture of the man who burned the flag and clearly he is not speaking -- what he is doing is burning a flag," (Buckley). Critics like William F. Buckley believe that in the recent past we have seen subjects covered by the free-speech amendment that were never intended to be shielded by it, claiming that the founding fathers conceived the law as a way to condone prayer in public places other than Congress (Buckley). John O'Sullivan of the National Review agrees stating that the First Amendment has been grossly misinterpreted to mean the freedom of expression instead of the freedom of political speech. This misunderstanding results in thinking that issues such as "flag burning are held to be constitutionally protected against legal restraint" (O'Sullivan). Others disagree with this assertion saying it is the underlying ideals that the symbol represents, such as the First Amendment, which makes burning the flag such a "potent form of speech" (Isaacson). The old adage "action speaks louder than words" was undoubtedly conceived for good reason; many times talking about an issue is simple and not explosive, but acting on an issue speaks volumes about one's dedication and charisma for that cause. Claiming that burning the flag is not a statement would be like asserting that flicking your middle finger up at someone is not meant to be an insult. Speech, by definition, is an expression of thought and through careful examination we can see how the burning of the flag, or any other symbolic action, can be considered as such. When the flag was first conceived it was simply a mixture of colors that would serve as a tag for our country. Over the course of time certain ideals and patriotism have come to be associated with that manufactured sign. Even the darkest hours of the country's history are represented by the flag which has always served as a signifier of our nation. Now these notions are so inextricably tied to the banner it no longer depicts simply a piece of cloth; people instantly recognize the flag and the ideas for which it stands. By burning the flag now one can definitely convey a notion not about the physical, superficial characteristics of the material flag but about those which are embedded in our mind and conceived abstractly. The liberties and travesties for which the flag stands are not reduced to ash because we have lit some cloth on fire but are instead highlighted and brought to the forefront just like making a speech about the issue would accomplish. The Supreme Court has even held in many cases that burning the flag is indeed speech when it is intended to make a political statement. They arrived at this conclusion through much trial and thought as the amendment guaranteeing free speech has been called into question on many occasions. As previously mentioned, in 1966 Sidney Street was convicted under a New York law prohibiting desecration of the flag. Street argued that the conviction should be overturned for several critical reasons, all of which would set precedence for cases that would follow it in the same vain. Street asserted that he was certainly intending to make a political statement; his expression was in response to a political situation. He could have just as easily taken a soap box to the corner and perched upon it to voice his ideas but the man decided to make an even louder statement. By burning the flag he attracted attention to the problem he was protesting and garnered substantial media coverage for himself (Case Law). He was able to distinguish his cry by being innovative and in the process he reached millions with his solemn statement. He also argued that the state law was a feeble attempt to protect the American banner because it was too broad, extremely vague and imprecise. Legal codes should be "drafted in terms so specific they will do only what they are supposed to do with minimum harm to freedom of speech" (Campbell) and California's law did not clearly define what exact conduct it was written to prohibit. The Supreme Court agreed and Street's conviction was overturned in 1969 ("Burning issue..."). He had successfully used symbolic speech to express "peaceful political dissatisfaction" (Campbell) and the high judges agreed his statement was to be protected by our First Amendment. The underlying influence in this decision was our system of democracy which can only be maintained by allowing views which oppose the majority to be shared. Any concept, no matter how unpopular, needs to be expressed in order to present alternatives which may be more attractive than the present situation. During the decades of the sixties and seventies flag burning at antiwar rallies had been frequent. Nevertheless the Supreme Court "had avoided a direct ruling on whether the government could prohibit such acts" during that era (Isaacson). Then in 1984 Gregory Johnson, a member of the Revolutionary Communist Youth Brigade torched an American flag outside the Republican Convention in Dallas. As was held in the Street decision, the court based it's ruling on the premise that burning the flag is indeed a form of illustrative speech. Although there was a dissent issued, the opinion of the court dictated that it would not "create for the flag an exception to the joust of principles protected by the First Amendment" (Isaacson). This ruling reinforced the standing tradition that political speech, even in the form of symbolic action, is securely guarded because of it's critical niche in the scheme of democracy. It also affirmed that the government can not permit abstract symbols, such as the flag, to be used to communicate only limited ideas (Constitutional Law Center). The aforementioned situation repeated itself the following year when Gregory Johnson burned the U.S. banner outside the Republican National Convention in protest of Ronald Reagan's policies. He was convicted under a Texas law which criminalized the desecration of a venerated object and the case worked its way up through the Texas' court system and finally arrived at the U.S. Supreme Court. The high court ruled that Johnson's conviction was inconsistent with the First Amendment because he was making a political statement during the incident in question and "the Court held that the government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved" (Constitutional Law Center). These cases illustrate how our nation's highest court has decided that speech with the greatest importance gets the greatest protection and political expression is of the utmost importance. They have ruled that this includes symbolic speech because it is an outlet for peaceful political assertion. While the judges' conclusions don't represent a moral standard, they do lay guidelines for the societal contract we all enter into under the law of the land. In the wake of the sentiments expressed by the courts U.S. politicians have sought legal ways to beat the supreme judges' decision on flag burning. In order to circumvent free-speech as provided by the Constitution states have tried to pass stricter and more untouchable state codes to protect the American symbol. Since this has not accomplished the job, politicians have even proposed an amendment to the Constitution that would outlaw defiling the U.S. banner. Many critics of the amendment accuse politicians of "using an emotional appeal to patriotism for personal political gain" (Ferri). They claim politicians seek the allegiance of voters and make decisions that are not well-reasoned or based on rational conclusions. Luckily this measure was narrowly struck down in the Senate where it was only three votes short of the two-thirds majority needed to pass the bill ("Amendment to ban flag..."). Congress evidently doesn't believe that the First Amendment is so important as to receive extreme consideration against any other option. As theorist Zacariah Chafee says, "when freedom of speech coincides with other rights the court has to weigh those rights. Freedom of speech should weigh very heavily; like having a head-start" (Campbell). It seems even President Bill Clinton has become soft on the free-speech issue. This is evidenced by the White House statement that Clinton would be open to a federal law banning defilement of the flag since he disapproves of the proposed Constitutional amendment to alter the Bill of Rights ("Amendment to ban flag..."). It is obvious that the desecration of the American flag must not be made illegal on the grounds of a few basic premises. Most importantly, when torching a flag is meant to make a statement it is a form of expression addressed by the Constitution. By outlawing symbolic speech and undermining the First Amendment on which this country was founded we are endangering the democracy that those laws were crafted to protect. Flag-burning seems like a minuscule issue in the whole scheme of free-speech but if we allow one concession to be made to what we consider our guaranteed rights then who is to say the government will not try and impose a second or a third restriction? A democracy thrives on an open exchange of ideas and limiting expression would put a damper on this free market. When groups and individuals have no outlet of placid expression in the political arena they are forced to resort to extreme measures to be sure their voice is heard.. The outcome of eliminating these channels of expression is clear in other cultures where strict, dictorial governments are plagued by violent, guerrilla tactics of those who have been shut off from dissension and assertion. We also cannot amend our Constitution carelessly and frivolously with out discounting its importance and its supremacy. There would be many logistic problems in censoring the burning of the flag which must also be taken into consideration.. As Frank Trippett of Time magazine writes, "Lawmakers looking for a way to protect the flag have a lot of searching to do if they hope to cover all the possibilities,... potential loopholes and tricky questions abound" (Trippett). One such issue is content neutrality which was brought to the forefront by the Texas v. Johnson decision. The Supreme Court said any statute to outlaw flag-desecration would have to make it always, under any circumstances illegal to burn the flag (Campbell). In Texas v. Johnson the lower courts' decisions were not reinforced because the ruling was made based on the thinking that what Johnson was expressing was offensive to the public not because he was burning the flag in general (Constitutional Law Center). The subject of content neutrality also raises questions about widely accepted desecration of the flag. It is considered traditional and even preferable by many legions associated with American patriotism to burn the flag "when it is in such condition that it is no longer a fitting emblem for display" ("Flag Etiquette"). In this vain, an amendment or law banning the desecration of the flag would prohibit disposing of it in a manner considered dignified under some circumstances. It is this ambiguity which makes the issue so tough to settle in the eyes of public and private citizens alike. For instance, would any restraint on flag burning cover desecration of banners which are the same design as the American flag but colored differently? Would the law extend to stop copies and duplicates of flags from being defiled or halt artist renderings of the U.S. banner from being soiled? (Trippett). While some may argue these questions are trivial and unrealistic many actual instances offer evidence that these conclusions are not far-fetched. In 1993 a school group was denied the right to paint a mural which depicted an American flag in flames. While the group said the flaming banner was meant to celebrate the nation's right to freedom of speech, the school board refused to authorize the painting and passed policy to prohibit all permanent murals as a way to ban that which depicted the flag aflame (Goldstein). This microcosm of conservative and strict interpretation serves as an example of what could come by allowing censorship of certain expression. Although there was no state or federal law in place to insure that the students could not post their views on freedom of speech, through de facto social policy the group's right to express themselves was stifled. Since this is an issue so closely tied to emotional and patriotic bonds many areas have been able to institute policies which limit speech through hush-hush and questionable methods. As Robert Goldstein of the National Review found, there are more than a half-dozen cases in which individuals, whose real 'crimes' appear to have been flag desecration, have been arrested for any other scapegoat offense (Goldstein). This is a dangerous practice which defies our Constitution and also sets the wrong example for law abiding citizens. It is apparent that politicians who are not willing to concede that flag burning is protected speech, will continue to struggle with constructing a precise law that will fit their own purposes and still conform to present day legal standards. To say that burning an outdated model of the flag or defacing a duplicate of the U.S. banner does not violate the morals is to affirm there is no offensive sign being conveyed by this desecration. By drawing a distinction between these examples and instances in which defiling the flag is blasphemous is to set a double standard that has no place in a democratic and legal setting. Furthermore, it is obvious that the flag can be used to convey notions such as respect for the ideals the flag represents; in example, a case where the flag is being burnt in order to retire it. If it is recognized that this is the communication of an idea then it can not be denied that the right to express that idea is protected by the First Amendment. "We do not consecrate the flag by punishing its desecration," Justice William Brennan wrote, "for in doing so we dilute the freedom that this cherished emblem represents," (Taylor). It is not this emblem that our nation is based on, but instead liberties and rights laid out in our Constitution. The next time we contemplate abridging these rights we need to remember what our nation was designed to insure and what our brave soldiers have fought so hard to protect; our freedom. Both the freedom to burn the flag and the freedom to disagree with that action.

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