Since the colonial era desecration of the flag has brought into conflict the right of expression and the protection of a national symbol. The provocative nature of the act, as it generates feelings of revulsion in many people who are angered by the desecration of a beloved national symbol, heightens the need to distinguish between conduct that is protected speech and conduct that is criminal. In March 1635, John Endecott became the first person punished for defacing a flag in the colonies that would become the United States; he was admonished and banned from office for one year by the General Court of the Massachusetts Bay Colony. He had cut the Cross of Saint George from the flag flown at Salem, Massachusetts, as he considered it a symbol of Catholicism, which Puritans opposed. Although the defacing was punished, it was not considered to be a great moral offense both because of the religious undertones of Endecott’s actions and because flags were not standardized, even on English ships, and had not yet acquired their relation to national identity.
Although a national symbol, the protection of the American flag was left to the states until the early 1990s. By 1905, 31 states had passed statutes criminalizing intentional defacing or damaging the flag and the remaining states did so shortly after. The first case to reach the U.S. Supreme Court involving prosecution for flag burning was Street v. New York, in which the court overturned a state conviction on the ground that the law was overly broad as it did not distinguish between speaking against the flag and destroying the flag. As the defendant had done both it was not clear for which action he was convicted. The court would not consider a flag-burning case for another 20 years.
In 1984, Gregory Lee Johnson burned an American flag in Dallas, Texas, during the Republican National Convention and was convicted under a Texas statute criminalizing the desecration of the flag in a way that the person knew would offend someone witnessing their action. The conviction was later overturned by the Texas court of appeals and wound its way to the U.S. Supreme Court in the 1989 term. The court struck down the statute, asserting that the government’s interest was directly related to the content of the speech as the statute only criminalized the action when it was likely to offend someone. The court thus distinguished this case from a previous case in which it had upheld a law prohibiting the burning of a draft card, as only incidentally related to speech.
The public reaction to the court’s ruling was swift and negative, with around 85 percent of people surveyed saying they disagreed with the court’s decision. Congress responded quickly, passing the Flag Protection Act of 1990, which attempted to criminalize the desecration of the American flag for any reason and regardless of how it is perceived, thus circumventing the court’s holding. The new law was quickly changed when four individuals, including Gregory Lee Johnson burned a flag on the steps of the Capitol building in Washington, D.C. The case quickly reached the Supreme Court, which struck down the new federal law using the same reasoning as in Johnson, that to ban the desecration of the flag was actually to restrict the symbolic speech of the act. In doing so the court equated the act of burning a flag with symbolic political language, reasoning that the only rationale to ban burning the flag was to prevent the message associated with the act from being heard.
In response to the second court loss opponents of flag burning sought to pass a constitutional amendment to protect the flag. Supporters of the amendment argued that the flag was a sacred symbol of the country, representing “the soul,” of the county, while opponents contended the proposed amendment was a direct attack on freedom of speech, a far more important part of the nation than the flag. The amendment failed to gain the necessary two-thirds majority in the House of Representatives and did not even receive a majority vote in the Senate. With the failure of the constitutional amendment and the end of the 1990 midterm elections, the issue of flag burning receded from the public discourse.
The flag desecration amendment was revived after the 1994 Republican Revolution, when the Republicans became the majority party in the House of Representatives. The revived amendment was essentially the same as the failed 1990 amendment. The arguments on both sides of the issue also remained the same from the previous attempt. This time it received the required two-thirds vote in the House and failed by only three votes in the Senate. Since then there has been no serious attempt to pass a constitutional amendment. The act of burning the flag, however, continues to resonate with many people.
- Chapin, Howard Millar. Roger Williams and the King’s Colors: The Documentary Evidence. Providence, RI: E. L. Freeman, 1928.
- Goldstein, Robert Justin. Burning the Flag: The Great 1989–1990 American Flag Desecration Controversy. Kent, OH: Kent State University Press, 1996.
- Goldstein, Robert Justin. Flag Burning & Free Speech: The Case of Texas v. Johnson. Lawrence: University Press of Kansas, 2000.
- Pilon, Roger, ed. Flag-Burning, Discrimination, and the Right to Do Wrong: Two Debates. Washington, DC: Cato Institute, 1990.
- Stone, Geoffrey R. “Flag Burning and the Constitution.” Occasional Papers From the Law School, the University of Chicago. Buffalo, NY: William S. Hein, 1990.
- Welch, Michael. Flag Burning: Moral Panic and the Criminalization of Protest. New York: Aldine De Gruyter, 2000.
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