Flag Burning
Flag burning refers to the intentional act of destroying or damaging a nation's flag, often as a form of political protest. This practice is steeped in symbolism and has sparked significant debate, particularly in the United States, where it raises questions about the balance between free speech and respect for national symbols. Advocates of flag burning argue that it is a protected form of expression under the First Amendment, while opponents view it as a disrespectful act deserving of legal consequences. Throughout U.S. history, various attempts have been made to legislate against flag burning, with some states enacting laws to penalize such actions. However, the U.S. Supreme Court has consistently ruled against these laws, affirming flag burning as a form of free speech in landmark cases like Texas v. Johnson.
Internationally, flag burning is also prevalent, particularly in regions where it serves as a protest against political, social, or cultural issues. In many countries, the act can be perceived as an affront not only to the nation but also to associated religious and cultural identities, leading to legal restrictions and penalties. The discourse surrounding flag burning remains contentious, reflecting deep-seated beliefs about nationalism, freedom of expression, and the power of symbolism in society.
Flag Burning
Definition: The willful burning or desecration of a national flag or similar symbol
Significance: A controversial form of political expression in the United States, flag burning has been protected under the First Amendment. It remains is a highly emotional issue that illustrates differences among the courts and other branches of government in interpreting censorship
The burning of a nation's flag is the best-known form of flag desecration, or intentional damage or destruction. The act of flag desecration is charged with symbolism, and therefore has often been debated between those who feel such an action is disrespectful and should be punished and those who see it as protected by free speech.
Throughout US history there have been numerous attempts to make flag burning illegal. Local and state officials have advocated and, in some cases, passed legislation making desecration of the national flag illegal. Nebraska outlawed flag desecration in 1903 and Texas did so in 1986. At the federal level, laws punishing flag desecration have been advocated at various times by members of the executive branch and have been introduced in both the House and Senate.
Some federal officials, including President George H. W. Bush in 1990, have gone as far as advocating amending the Constitution to outlaw flag burning. Such an amendment was, however, voted down by both houses of Congress during Bush’s administration. In 1995 the House of Representatives overwhelmingly passed a flag-burning amendment, but this time it was President Bill Clinton who opposed it. At various times, as many as forty-nine of the fifty state legislatures—the bodies that ultimately ratify constitutional amendments—have indicated their willingness to support a flag-burning amendment. In some cases, police concerned about the legality of such laws have chosen to arrest flag burners on other charges, such as arson, disturbing the peace, or inciting to riot.
Debate over flag burning has occupied far more time and energy in America than have actual instances of flag burning. Opponents of censorship have noted that within a typical year, only five or six instances of flag burning are reported throughout the United States. These activists have suggested that the issue has usually been raised more for political purposes during election periods than as a critical component in the debate over free speech. For example, President Donald Trump made headlines following the controversial 2016 presidential election when as president-elect he suggested flag burners should be imprisoned, lose their citizenship, or otherwise be punished. The comments came even as he claimed to support free speech on other issues, and were widely viewed as ploy to appeal to conservative Republicans and agitate liberals.
Judicial History
Even as American legislatures have debated laws to suppress flag burning, the judicial system has consistently ruled such laws unconstitutional. The US Supreme Court has repeatedly ruled against flag-burning legislation; however, its members have not been unanimous in their decisions. Several of its rulings on this issue were decided by 5–4 votes. In Street v. New York (1969), for example, the Supreme Court upheld bus driver Sidney Street’s right to burn an American flag. In 1974 the court overturned judgments against two other protesters who had been convicted under state flag-desecration laws. One of these had sewn an American flag to the seat of his pants; the second had attached peace signs to a US flag that he displayed outside his window. In some cases, however, the court has upheld state regulations on flag mutilation in such cases as Halter v. Nebraska (1907) and Kime v. United States (1981).
Flag burning was most firmly established as a legal form of expression in the Supreme Court’s 1989 decision in Texas v. Johnson. In 1984 a man named Gregory Johnson was arrested for burning a US flag outside the Republican National Convention in Dallas, Texas. He was convicted of violating the Texas law against flag desecration. His appeal reached the Supreme Court, which ruled—in another 5–4 decision—that his act was a legitimate form of expression protected by the First Amendment. In writing the Court’s majority opinion, Justice William J. Brennan stated that "if there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Chief Justice William H. Rehnquist, in his dissenting opinion, labeled flag burning "evil" and said that it "is most likely to be indulged in not to express any particular idea, but to antagonize others."
Rehnquist’s case against flag burning reflected the view that such acts represent a form of "fighting words"—a concept formulated in the Supreme Court’s 1942 Chaplinsky v. New Hampshire ruling. In that decision the court reasoned that words likely to provoke an average person to fight or commit a breach of the peace were not protected by the First Amendment.
The Court’s Texas v. Johnson decision rendered flag-burning laws in forty-eight states unconstitutional. However, because flag desecration is such an emotionally charged issue, state and federal officials persisted in trying to outlaw it. Congress passed the Flag Protection Act of 1989 in response to the court’s Texas v. Johnson ruling, but the Supreme Court immediately declared the law illegal. A year later, the Court reaffirmed its earlier ruling in United States v. Eichman and United States v. Haggerty.
In 1990 Associate Justice John Paul Stevens stated that the Supreme Court could have saved "a lot of ink" and "a lot of headache" by refusing to hear the lower court cases related to flag burning. Sharp divisions in the courts, as well as intense feelings expressed by presidents, members of Congress, and the general public over this issue demonstrated that it would not soon be resolved. Opponents of flag burning continued to attempt to pass a Flag Desecration Amendment to the US Constitution, with favorable votes in the House of Representatives in 1995, 1997, 1999, 2001, 2003, 2005, and 2006, for example. However, each time the Senate failed to pass the proposed amendment.
Flag Burning Throughout the World
As a form of political protest, flag burning has occurred more frequently in countries outside of the United States. For example, demonstrations in the Philippines following a murder conviction in 1995 included numerous acts of desecration of the flag of the United Arab Emirates. Philippine president Fidel Ramos labeled the actions "unreasonable displays of emotion" and urged that flag burning "should be condemned by all of us, even if these are manifestations of legitimate protests." Flag burning has also been frequently used as a symbolic gesture in the South Africa, where rival ethnic factions have often desecrated the flags of rival groups.
The practice has also been common in Middle Eastern countries, where the complex relationships among political, social, and religious institutions have added extra symbolic dimensions. Indeed, in many parts of the world, flag burning is interpreted as not only an attack on the state, but an attack on religion and culture. Several countries maintain bans on the practice, with varying penalties.
Bibliography
Fridell, Ron. US v. Eichman: Flag-Burning and Free Speech. Tarrytown: Marshall Cavendish Benchmark, 2009. Print.
Goldstein, Robert J. Burning the Flag: The Great 1989–1990 American Flag Desecration Controversy. Kent: Kent State UP, 1996. Print.
Goldstein, Robert J. Desecrating the American Flag: Key Documents from the Civil War to 1995. Syracuse: Syracuse UP, 1996. Print.
Goldstein, Robert J. Saving "Old Glory": The History of the American Flag Desecration Controversy. Boulder: Westview, 1995. Print.
Rothman, Lily. "This Is Why It's Legal to Burn the American Flag." Time. Time, 11 June 2015. Web. 18 Nov. 2015.
Welch, Michael. Flag Burning: Moral Panic and the Criminalization of Protest. New York: de Gruyter, 2005. Print.
"When the Supreme Court Ruled to Allow American Flag Burning." National Constitution Center, 21 June 2017, constitutioncenter.org/blog/when-the-supreme-court-ruled-to-allow-american-flag-burning. Accessed 27 Apr. 2018.
Wright, David. "Trump: Burn the Flag, Go to Jail." CNN, 29 Nov. 2016, www.cnn.com/2016/11/29/politics/donald-trump-flag-burning-penalty-proposal/index.html. Accessed 27 Apr. 2018.