Freedom of speech, freedom of press, freedom of association, freedom of assembly and petition are all part of this great nation’s democratic freedom of expression. Protected by the First Amendment, freedom of expression, as the Supreme Court has written, is the matrix of every other form of freedom. However, this freedom has been on many occasions misused, especially during times of national crisis. In 1984, during a Republican National Convention in Dallas, Texas, one Gregory Lee (Joey) Johnson participated in a political demonstration to protest against the then President the late Ronald Reagan and some Dallas-based corporation’s policies. In the heat of the moment, Johnson burned an American flag in full view while other demonstrators shouted in protest against the Reagan administration. Johnson was tried and convicted. However, the Supreme Court reversed the conviction stating that certain cases that that were of symbolic expressions may be protected under the First Amendment.
THE ACT OF FLAG BURNING
America is a country that follows its constitutional laws most reverently, or that is how we have come to believe. When people misuse their constitutional rights, the law is always there to protect them. It’s because of this that acts like flag burning has been a national issue. “Sidney Street was jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith. The U.S Supreme Court ruled that burning the American flag is a form of free speech guaranteed under the First Amendment” (ACLU, 1997). While many die-hard American patriots would argue that flag burning is anti-national and immoral and should be punishable, the law of the land stands supreme. Is burning the flag an acceptable means of protest or should it be considered a criminal act? The First Amendment is there to protect, not to be abused. A proposal to amend this law is being studied to modify the First Amendment to make flag burning a crime.
In the flag burning case related to Johnson in 1984, while the march was by and large peaceful and no one was physically injured or threatened with injury, several witnesses to the Johnson episode were seriously offended by his burning the American flag. For his action, “Johnson was found guilty and convicted with the desecration of a respected object in violation of a Texas statute. This move was allowed by a State Court of Appeals. However, during the hearing, the Texas Court of Criminal Appeals reversed the earlier decision stating that the State of Texas, consistent with the First Amendment, could and should not punish Johnson for burning the flag in these circumstances. The court found that Johnson’s act in burning the national flag was an expressive conduct protected by the First Amendment. The law was such that no prosecution of Johnson was possible under the present circumstance; the court concluded that the State could not criminally sanction criminal charges against Johnson for his act in desecrating the flag. It also held that the statute did not meet the State’s goal of preventing breaches of the peace, since the flag burning did not result in any serious public disturbances. It was assessed that there were 75 to 100 demonstrators, and despite such a large number of demonstrators, it was Johnson alone who was charged with a crime. The criminal charge against Johnson was the desecration of a respected object in violation of Texas Penal Code Ann. 42.09(a)(3) (1989), which states that any person(s) who commits an offense intentionally or knowing desecrates a public monument, a place of worship or burial or a state or national flag is liable to be prosecuted and if found guilty, imprisoned. On trial, Johnson was found guilty and sentenced to a year in prison, and asked to pay a fine of $2,000. When the order was challenged, the Court of Appeals for the Fifth District of Texas at Dallas affirmed Johnson's conviction, but the Texas Court of Criminal Appeals reversed the order, holding that the State could not, consistent with the First Amendment, punish Johnson for burning the flag under the current circumstances” (Apel, 1989). What has happened here is that even though Johnson was acquitted of his crime (if I may), there were other protestors who felt that Johnson’s action in burning the national flag immoral and disgraceful. Therefore, the question remains whether most Americans who are patriotic would allow such acts to go unpunished. Yes, the First Amendment does protect freedom of speech, but does flag burning qualify as an act of speech? This is an issue which is highly contentious and contradictory.
According to Welch (2000), in Flag Burning: Moral Panic and the Criminalization of Protest, “flag burning, like the Black Power salute of the 1960s, is seen by many as a potent symbolic gesture that conveys a sharp criticism of the State. The act of torching differs drastically from other forms of defiance, because the flag is revered and a symbol of identity. Considering this, attempts to penalize and deter flag desecration transcend the effective function of regulating public protests. Because the flag is permeated with patriotic qualities, campaigns to preserve its integrity invoke a higher moral obligation by the government and its people. The flag is sacred, and many glorify it for the authority it represents, and when someone burns it in public view, it not only offends political hardliners, but most American citizens as well. In 2006, CNN, after a proposed constitutional amendment to ban the desecration of the national flag and the Senate fell short by a single vote in seeking its amendment on June 28, 2006, conducted a poll in which 56 percent of people interviewed, supported the measure rejected by the Senate, while 40 percent of respondents opposed it. The poll surveyed 1,031 adults and had a sampling error of 3 percentage points. After the verdict when Justice William Brennan was asked about his opinion on Johnson, he stated that “Johnson was not prosecuted for his expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values” (Welch, 2000).
However, with more and more people taking to the streets with new demands, the flag became the target for trouble-makers and more Americans rose to renew to support to punish these flag burners. Sadly, though many showed and expressed their moral outrage over the flag desecration, the campaign to criminalize such acts ran into hard resistance by the First Amendment advocates who were committed to preserving the constitutional right to free speech. If burning the flag is an act of freedom of speech, shouldn’t stealing to survival also be an act of freedom of speech? Stewart (1989), in an article titled, ‘Burning Flags, Steamy Calls,’ in an ABA journal, asked the question, “Under the commercial-speech doctrine, does a private business have a First Amendment right to hold ‘Tupperware parties’ in dormitories at a state university?” Sadly, the majority shifts from case to case.
As things stand, flag burning is considered as freedom of speech and under the First Amendment, can not be prosecuted by law. Had the vote gone in favor of amendment, this would have been seen as a historical overrule of the 1989 Supreme Court decision allowing it. Babington (2006) summed it up nicely by quoting Democrat Senator Inouye of Hawaii, who said, “Flag burning is obscene, painful and unpatriotic, but we Americans gave our lives to make sure that all Americans have a right to express themselves, even those who harbor hateful thoughts.”
Flag burning, be it of any corporate, state, or country in public is an eyesore and a despicable act. While many see this as an act demeaning the nation, a vote to modify the First Amendment and make flag burning punishable was opposed in the Senate. Most Americans show respect to their national flag and treat it with dignity and honor even though the First Amendment guarantees constitutional rights to free speech and people may burn the flag in protest. The debate continues for the right to make the issue of flag burning punishable and undeterred by the First Amendment.
ACLU, (1997), American Civil Liberties Union, ACLU Position Paper, Web, Retrieved from http://www.aclu.org/freespeech/gen/11178pub19970102.html
Apel, W, S, (1989), U.S. Supreme Court: TEXAS v. JOHNSON, 491 U.S. 397 (1989) 491 U.S. 397, Certiorari to the Court of Criminals Appeals of Texas, No. 88-155, Web, Retrieved from http://www.esquilax.com/flag/texasvjohnson.html
Babington, C, (2006), Article, Washington Post: Senate Rejects Flag Desecration Amendment, Web, Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2006/06/27/AR2006062701056.html
Stewart, D, (1989), Burning flags, Steamy calls, ABA Journal, Freedom of speech: Actions & Defenses (Law) – United States, 75(10), ISSN 0747-0088, 5
Welch, M, (2000), Flag Burning: Moral Panic and the Criminalization of Protest, Book, New York: Aldine de Gruyter, ISBN: 0-202-30652-6