American Flag Desecration Controversy
The American Flag Desecration Controversy centers around the legal and cultural debates regarding the act of flag burning, particularly in relation to the First Amendment rights of free speech. The controversy gained significant attention following the arrest of Gregory Lee Johnson in 1984 after he burned an American flag during a protest against Ronald Reagan's presidential nomination. Initially found guilty under Texas law, the ruling was overturned by the Texas Court of Appeals, which argued that flag burning constituted symbolic speech protected by the Constitution.
This issue reached the U.S. Supreme Court, culminating in the landmark 1989 case Texas v. Johnson, where the Court ruled 5-4 that flag burning was indeed a form of free speech, invalidating existing flag desecration laws. The decision sparked a political response, leading to the Flag Protection Act of 1989, which aimed to mitigate the Supreme Court's ruling but was itself struck down in 1990 in United States v. Eichman. Despite these legal battles, many Americans remain divided on the issue, with ongoing discussions about potential constitutional amendments to prohibit flag desecration, reflecting the complex interplay between patriotism, free speech, and societal values.
American Flag Desecration Controversy
Form of protest using symbolic speech by desecrating the national banner
A controversial demonstration outside a political convention in 1984 triggered a five-year legal battle in the courts over whether or not the desecration of the American flag was protected under the First Amendment.
On August 23, 1984, Gregory Lee Johnson, a member of the Revolutionary Communist Party, was arrested for violating a Texas law forbidding the mistreatment of a state or national flag in a manner intended to offend those who might witness the act. The day before, he had set a stolen American flag on fire outside the Republican National Convention in Dallas, as one of approximately one hundred protesters angry over the nomination of Ronald Reagan as the Republican candidate for president of the United States. The first court that heard the case found Johnson guilty, fined him two thousand dollars, and sentenced him to a year in jail. However, the Texas Court of Appeals overturned this ruling, arguing that flag burning is a type of symbolic speech and is thus protected under the First Amendment. .
Whether or not a person has the right to burn the American flag was an issue that divided many Americans, and it was widely debated. The case made its way to the US Supreme Court, where a famous ruling was eventually made on June 21, 1989: In Texas v. Johnson, by a margin of 5 to 4, the Supreme Court ruled the freedom of speech does extend to such symbolic speech as flag burning and thus made all flag desecration laws then extant invalid. The swing vote in the case was Associate Justice Antonin Scalia , who joined the majority opinion.
Congress disagreed and reacted swiftly. In an attempt to craft a constitutionally permissible law, Congress passed the Flag Protection Act of 1989, which removed the proviso of the Texas law that the act of desecration had to be intended to offend someone. It sought instead to craft a law that was more content neutral, and President George H. W. Bush signed the act into law in late October. The passage of the Flag Protection Act—which made it a crime not only to burn a flag but also to “maintain [it] on the floor or ground”—set off a spate of US flag-burning incidents. Protesters were arrested, and a new set of court hearings worked their way up through the legal system. On June 11, 1990, in United States v. Eichman, the Supreme Court upheld its earlier rationale and declared the Flag Protection Act of 1989 invalid, again by a vote of 5 to 4. The majority observed that, while the law attempted some content neutrality, it included an exemption for burning “worn or soiled” flags in a respectful ceremony, thereby confirming that it was designed to encourage patriotism and discourage dissent.
Impact
After the Eichman ruling, the brief outbreak of flag-burning incidents involving the American flag abated, and media attention turned elsewhere. However, some Americans and many members of Congress remained upset by the ruling. As a result, a movement began to amend the US Constitution explicitly to prohibit the desecration of the flag. The congressional vote on a measure to pass a constitutional amendment and send it to the states for ratification became an annual event in Washington, and often the vote was extremely close.
Bibliography
Goldstein, Robert Justin. Burning the Flag: The Great 1889-1990 American Flag Desecration Controversy. Kent State UP, 1996.
Leepson, Marc. Flag: An American Biography. St. Martin’s, 2005.