Symbolic Speech

The Supreme Court's decision in TEXAS V. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), striking down a Texas law that made burning the U.S. flag a crime, was endorsed by the AMERICAN CIVIL LIBERTIES UNION (ACLU) and other groups that seek to preserve freedom of expression under the FIRST AMENDMENT. Other groups and individuals, however, were dismayed that the Court would strike down a law that protected the symbol of the United States. Congress responded by passing the federal Flag Protection Act of 1989, 103 Stat. 777, which made flag burning a federal crime. When the Supreme Court struck down the federal law in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990), opponents of flag burning began to campaign for a constitutional amendment that would make such a law constitutional.

The proponents of a flag protection amendment have been led by the Citizens Flag Alliance (CFA), a nonpartisan, nonprofit national coalition that includes more than one hundred organizations and is funded, in large part, by the AMERICAN LEGION. The proposed amendment states that "Congress shall have power to prohibit the physical desecration of the flag of the United States." The House of Representatives overwhelmingly passed the amendment in June 1995, but the Senate defeated the amendment by three votes in December 1995.

Despite this defeat, the CFA has continued to campaign for the amendment, noting that opinion polls consistently show that 80 percent of U.S. citizens support the amendment. In addition, fortynine state legislatures have passed resolutions asking Congress to pass a flag protection amendment—eleven more states than are needed to ratify an amendment. The amendment was reintroduced in Congress in 1997. The House passed the measure by a vote of 310–114, but a vote in the Senate was delayed.

Proponents of the amendment contend that it does not restrict freedom of expression or limit the First Amendment. They note that there have always been limits on free speech and that the Supreme Court has never regarded the guarantees of the First Amendment as absolute. Proponents point to Chief Justice WILLIAM H. REHNQUIST's dissent in Johnson, in which he characterized flag burning as "the equivalent of an inarticulate grunt or roar" and the flag as a national symbol deserving of protection.

In addition, supporters of the amendment deny that flag burning is symbolic speech. They argue that the act of flag desecration is conduct rather than speech and is thus outside the First Amendment's protection. The Supreme Court's decisions have regarded flag burning as protected symbolic speech, however, so this argument can only prevail if the Court's interpretation is overridden by an amendment to the Constitution.

Supporters of the amendment contend that the flag has a special place in U.S. society and culture and serves as a unifying symbol for a heterogeneous nation. Because of its unique status, the flag must be honored and respected. They argue that the freedom to desecrate the flag is not a fundamental freedom deeply rooted in the First Amendment. Therefore, they conclude, it is reasonable for a balance to be struck between the rights of the individual and her responsibility to society. In this instance societal values should prevail over individual interests.

Proponents of the amendment strenuously object to the charge that they are restricting FREEDOM OF SPEECH. The amendment does not prevent a person from criticizing, in speech or writing, the government, government officials, or even the flag itself. The amendment simply gives Congress the authority to pass legislation that prohibits the desecration of the U.S. flag.

Opponents of the amendment, led by the ACLU, insist that the passage of the flag amendment would limit freedom of expression and restrict the First Amendment. They point out that the word desecration is a religious concept that means to profane or violate the sanctity of something. According to opponents, the flag amendment would implicitly constitutionalize the flag as the sacred or divine object of the United States. Such an action would run counter to the BILL OF RIGHTS.

Opponents of the amendment contend that flag burning is a rare event that does not merit the amending of the Constitution. No more than five or six persons were prosecuted annually for flag burning before the Johnson decision. Opponents worry that once a flag desecration amendment is passed, it will open the door to the revocation of other individual freedoms. The Constitution and the Bill of Rights were designed to prevent the tyranny of the majority. Just because a flag desecration amendment has broad support does not make it right. Once flag burning is banned, legislators and pressure groups will seek to restrict other freedoms.

Those opposed to the amendment also argue that the Supreme Court's decision in Johnson contained the best reason for rejecting it. As Justice WILLIAM J. BRENNAN JR. stated, "We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." Opponents see the toleration of actions such as flag burning as a sign and source of national strength. In their view the flag stands for the freedoms each U.S. citizen enjoys, including the right to burn that very symbol.