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What Is The Appropriate Use Of The Confederate Flag?, Further Readings

The official banner of a state or nation, often decorated with emblems or images that symbolize that state or nation.

On the U.S. flag, 13 horizontal stripes (in red and white) represent the original 13 colonies. The union is represented by 50 white stars, for the 50 states, arrayed on a field of blue. The U.S. flag is sometimes called the Stars and Stripes, Old Glory, or the Red, White, and Blue.

Titles 4 and 36 of the U.S. Code govern when, where, and how a flag may be displayed; how a flag may be used; and the proper means of disposing of a worn or soiled flag.

The Stars and Stripes became a popular and revered symbol of the United States during and after the Civil War. The Union's victory over the Confederacy and the return to a united country engendered patriotic fervor that was embodied in this symbol. When large numbers of immigrants entered the United States during the late nineteenth and early twentieth centuries, the flag was appropriated as a symbol of nationalism and patriotism by groups that felt that the cultures and customs of the new citizens threatened national unity and security. During the same period, as the advertising industry grew along with rapid industrialization, the flag was commonly used for commercial purposes. Flags or images of flags were used to promote everything from toilet paper to chewing gum. The flag was also appropriated for political gain. In 1896, the campaign manager for Republican presidential candidate WILLIAM MCKINLEY distributed millions of flags for use at McKinley's rallies. The McKinley campaign also distributed buttons bearing the likeness of a flag, as symbols of support for the candidate.

The turn of the century saw the beginnings of a movement to protect and honor the flag. In the early part of the twentieth century, schools commonly required students to salute the flag each morning. Some students refused to participate in the salute, mainly on religious grounds. By 1940, at least 200 public school students had been expelled in 16 states for refusing to salute the flag. Many of them were Jehovah's Witnesses, who maintained that any salute to the national flag constituted an act of idolatry and thus violated their religious beliefs. The expulsion of two Jehovah's Witnesses was challenged in Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375 (1940). In Gobitis, a father sued to enjoin the school district from prohibiting his children's attendance at school after they refused to salute the flag. The U.S. district court granted the INJUNCTION allowing the children to return to school, and the U.S. Court of Appeals for the Third Circuit affirmed the district court. On appeal, the Supreme Court reversed the lower courts, holding that the school district's requirement that students salute the flag did not unconstitutionally infringe their religious freedoms. Writing for the 8–1 majority, Justice FELIX FRANKFURTER said the salute requirement was constitutional as long as the students' "right to believe as they please, to win others to their way of belief, and their right to assemble in their chosen places of worship for the devotional ceremonies of their faith, are fully respected."

A group of senators, including former Senator Bob Dole, speak in support of a constitutional amendment banning flag desecration during a June 1990 press conference.

A few years later, the Court reversed its position, in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), another challenge to mandatory flag salutes brought by members of Jehovah's Witnesses. In Barnette, the Court held that the school board could not require public school teachers and students to salute the flag. The Court said FREEDOM OF THE PRESS, of assembly, and of worship may be restricted "only to prevent grave and immediate danger to interests which the state may lawfully protect." In a companion case, Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87L. Ed. 1600 (1943), the Court overturned the convictions of two people found guilty under a state statute that forbade the dissemination of information advocating refusal to salute, honor, or respect the flag. The Court held that the statute infringed FREEDOM OF SPEECH and freedom of the press. The Barnette and Taylor decisions signaled the Court's emerging support of the notion that freedom of speech extends to symbolic as well as oral and written speech.

Also during the early 1900s, numerous state laws were passed prohibiting the desecration of the flag or the use of the flag in advertising. Some of these laws were struck down by state courts, but in 1905, the U.S. Supreme Court upheld their validity when it affirmed a lower court that had refused to strike down a Nebraska statute prohibiting the use of the flag in advertising (Halter v. Nebraska, 205 U.S. 34, 27 S. Ct. 419, 51 L. Ed. 696 [1907]). The Court said the flag, as an emblem of national authority and an object of patriotic fervor, should not be associated with personal or commercial interests. It held that the Nebraska statute did not infringe personal property rights or individual freedom.

For 80 years, Halter was cited as precedent in cases upholding flag desecration statutes, and these laws stood solidly intact through most of the twentieth century. The laws were invoked frequently to prosecute demonstrators who burned flags to protest U.S. involvement in the VIETNAM WAR. Between 1965 and the end of the war in 1973, as many as one thousand arrests were made under various state laws prohibiting the desecration of the flag.

The Supreme Court addressed the constitutionality of flag desecration laws again in TEXASV. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). During the 1984 Republican National Convention, in Dallas, the defendant, Gregory Lee Johnson and one hundred others staged a protest outside the convention hall. During the demonstration, Johnson burned a U.S. flag. He was later arrested for violating the Texas Venerated Objects Law (Tex. Penal Code Ann. § 42.09(a)(3) [Vernon 1974]), which outlawed intentionally or knowingly desecrating a flag in a way that some observer might find seriously offensive. Johnson was convicted, but his conviction was overturned by the Texas Court of Criminal Appeals (Johnson, 755 S.W.2d 92 [Tex. Crim. App. 1988]). The state appealed to the U.S. Supreme Court. In a 5–4 decision, the Court affirmed the court of criminal appeals, holding that Johnson's conduct was expressive communication, a form of speech that requires FIRST AMENDMENT protection. Addressing Texas's claim that it had a legitimate interest in preventing a breach of the peace, the Court observed that no disturbance of the peace occurred or was threatened by Johnson's burning of the flag. The Court also held that the venerated objects statute was subject to the strictest constitutional scrutiny because it restricted Johnson's freedom of expression based on the content of the message he sought to convey. The Court concluded, "We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

Many people were outraged by the Johnson decision. President GEORGE H. W. BUSH denounced flag burning and proposed a constitutional amendment to overturn Johnson. The Senate and the House of Representatives passed numerous resolutions calling for a constitutional amendment outlawing flag burning. When it became clear that a constitutional amendment was probably not feasible, Congress instead passed the Flag Protection Act of 1989 (Pub. L. No. 101-131, 103 Stat. 777 [amending 18 U.S.C.A. § 700]), which made it a criminal offense to mutilate, deface, or burn a flag; place a flag on the floor or ground; or walk on a flag. The act did not mention the motive of the actor or the effect on observers of the act. With these omissions, the statute was designed to be content neutral and to pass the most stringent constitutional scrutiny.

The Flag Protection Act was tested in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990). In Eichman, the defendants were arrested for burning a flag in a protest. They moved to dismiss the charges on the ground that the Flag Protection Act violated the First Amendment. The district court dismissed the charges, and the government appealed directly to the Supreme Court. Affirming the district court's findings, the Court reasserted its position that flag burning is expressive conduct protected by the First Amendment. The Court conceded that the federal act differed from the Texas statute in Johnson because it did not appear to regulate the content of the message conveyed by the prohibited acts. Nonetheless, the Court held that the government's interest in preserving the flag as a national symbol was implicated under the act only when a person's treatment of the flag communicated a message that opposed the government's ideals. In effect, the act did regulate the content of protected speech. The Court concluded that the government may not prohibit the expression of an idea, no matter how disagreeable or offensive that idea may be.

The Eichman decision prompted President Bush to renew his efforts to gain passage of a constitutional amendment banning flag desecration. The measure came to a vote in June 1990. By then, public and political interest in the issue had dissipated, and many members of Congress who had voted for the Flag Preservation Act were unwilling to support a change to the Constitution. The proposed amendment failed by a vote of 254–177 in the House of Representatives and 58–42 in the Senate.

During the mid-1990s and early 2000s, the House of Representatives continued to consider constitutional amendments that would allow Congress to enact legislation prohibiting the desecration of the flag. In 2003, the House passed a proposed amendment that reads, "The Congress shall have the power to prohibit the physical desecration of the flag of the United States." H.R.J. Res. 4 (108th Cong., 1st Sess.). According to one of the amendment's supporters, Representative Steve Chabot (R-OH), "If we allow [the flag's] defacement, we allow our country's gradual decline." The House approved the resolution by a vote of 300 to 125.

Although the amendment was still officially under consideration by the Senate in October 2003, similar measures in 1995, 1997, 1999, and 2001 failed to pass in the Senate. In order to be passed, the proposed amendment must receive a two-thirds majority in both the House and the Senate, plus approval from three-fourths of the states. In 1995 and 2001, similar measures received 63 votes, four shy of the required two thirds majority. Democrats opposed to the amendment have called the bi-annual legislation a "rite of spring" for House Republicans who support the measure.


Censorship; Religion.

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