Flag Burning and the First Amendment

One golden rule of the First Amendment would be that the United States government cannot ban free expression of any idea. It doesn’t matter how much the majority disagrees with that idea or finds it offensive. Which is why American flag burning is protected under the First Amendment, it’s an expression of an idea. Texas v. Johnson. In 1989 a landmark case involving flag burning, Texas v. Johnson, Greg Lee Johnson, protesting the Reagan administration’s policies, burned the American flag in front of a city hall in Dallas, Tx (Oyez.org, 1989). It was held that to burn the American flag was in fact protected under the First Amendment, it was an expressive act.

Burning of the American flag is still considered to be a form of speech by expressing an idea that is protected under the First Amendment. The law continues to be upheld even though so many find it offensive and despite efforts to criminalize the desecration of the American flag. Halter v. Nebraska. The controversy of desecrating the flag is not new to the courts, it has been a battle that goes back to the early 1900’s with Halter v. Nebraska. Which was a case not necessarily a flag burning but was a landmark case that lead the way to the Federal Flag Desecration Law. Two businessmen were barred from selling their beer with the American Flag on their bottles (NCC Staff, 2018). In 1968, The United States Congress passed the Federal Flag Desecration Law.

The law was passed after a protest to the Vietnam War. This new law made it illegal to “knowingly cast contempt on any flag that represents the United States by trampling on it, burning it, mutilating it publicly, defacing it, or defiling the flag (NCC Staff, 2018). Spence v. Washington. In 1974 another “desecration” case, Spence v. Washington. Harold Spence used tape to make a peace sign on an American flag that he displayed outside of his home in Seattle, WA. Spence was arrested and convicted for displaying the American flag with the symbol adhered to it, even though he offered to take it down when approached by law enforcement, a violation under a Washington statute. Supreme Court rejected the argument that the Washington Statute violated Spence’s First Amendment (Oyez.org, 1974).

Overturned. Because of Johnson’s case in 1984 both the case in Washington and the case in Nebraska the convictions were overturned. Congress has been placed in many situations where making a decision that does not necessarily fit within their principles. However, their commitment to the judicial process and upholding the laws in the Constitution are important. Flag Protection Act. The Flag Protection Act of 1989 was passed by Congress because of the Johnson decision. This Act was the first attempt to overturn the Johnson cases decision to uphold that flag burning be protected as a political expression falling under the First Amendment. At the same time, there were two other attempts at outlawing flag burning. The first was the Flag Protection Amendment and the second was the Flag Protection Act.

The Flag Protection Amendment was voted down, however, the Flag Protection Act passed by both the Republicans and Democrats of Congress agreed with the Act. President Bush permitted the bill without his signature, in becoming law. Although the Act was just an amendment to an already existing U.S. Code (Apel, 2018). In the same year, in fact the day that the bill was in effect, several people burned their American flags in protest of the Flag Protection Act and its violation of the First Amendment. Several people were charged with violating the new law, of those charged were a Shawn Eichman and Mark Haggerty. U.S. v. Haggerty and U.S. v. Eichman. The U.S. v. Haggerty and the U.S. v. Eichman both argued together for setting flags on fire at the U.S. Capitol steps. In both cases protesters had their charges dismissed by federal judges which cited the Texas v. Johnson case. In 1990 the Supreme Court upheld that the Flag Protection Act was in fact unconstitutional, the law does remain as part of U.S. Code today (Apel, 2018).

Although the controversy on the legalities regarding the desecration of the American flag being a violation of the First Amendment never really went away, it recently has come back into the media with President Trump. President Donald Trump. Donald Trump most recently stating that he plans on prosecuting flag burning protestors. In 2016, President Donald Trump proposed that there needed to be some sort of penalty for participating in the burning of the American Flag (Wright, 2016). It is obvious that in the heat of the moment President Trump says a lot of things, that he may have thought about in passing at one point or another but has not fully thought it through, especially when it comes to Twitter.

His proposal of jail time or loss of citizenship for burning the American flag, does not take into consideration the two U.S. Supreme Court rulings, both of which protect this form of free speech under the First Amendment. ‘Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!’ Trump tweeted. Even though frequent efforts have been attempted over the years, and probably will for years to come. The U.S. Supreme Court remains vigilant in its protection of the First Amendment Right and prohibiting the burning of the American Flag.