FREE ESSAY ON FLAGBURNING

FLAGBURNING

IS FLAG BURNING PROTECTED BY THE FIRST AMENDMENT?
2/17/00
If a jerk burns a flag, America is not threatened. If a jerk burns a flag, democracy is
not under siege. If a jerk burns a flag, freedom is not at risk and we are not
threatened. My colleagues, we are offended; and to change our Constitution because
someone offends us is, in itself, unconscionable, 
-- Rep. Gary Ackerman (D-New York)
It has been held by the United States Supreme Court that burning an American flag as
means of expression or peaceful political protest is an act that is fully protected under
the first amendment. Government does not have the power to prohibit flag burning simply
because they, or anyone else, may find it offensive. However, other laws or ordinances
such as arson laws or rules governing the use of fire in public places may still be
applicable.
In 1989, a man by the name of Gregory Lee Johnson was active in a political protest. When
the demonstration was over, Johnson set fire to and burned the United States flag in
front of the Dallas City Hall. Surrounding protesters chanted America, the red, white,
and blue, we spit on you. While watching the flag go up in flames. Katsh 128
Johnson was arrested for violating a Texas flag desecration statute. He was convicted,
sentenced, and fined. The court of appeals for the Fifth District of Texas upheld the
conviction. The Texas Supreme Court of Criminal Appeals, however, reversed the decision
holding that the conviction violated Johnson's rights guaranteed under the first
amendment.
When the case made it to the United States Supreme Court, it was decided that such a
statute violated the first amendment, and that Johnson had indeed been wrongly convicted.
Supreme Court Justice William Brennan stated that interest in preserving the flag as a
symbol of nationhood and national unity [does not] justify his criminal conviction for
engaging in political expression. He also said that punishing people who feel differently
towards the flag is not the way to preserve it. Katsh
The United States Supreme Court concluded that the burning of the American flag was
expressive conduct and was protected under the Constitution, namely the first amendment.
Almost immediately after the Johnson decision, Congress passed the Flag Protection act of
1989, making it a crime for anyone to knowingly mutilate, deface, burn, maintain on the
floor or ground or trample upon any flag of the United States. The act caused chaos
across the nation as people from every where come out to protest this newfound forced
patriotism
People protested by desecrating nearly every flag within their reach. This came in front
of the United States Supreme Court once again. The court firmly upheld the Johnson
decision reasoning that the state's interest in preserving the flag was directly related
to the suppression of free expression. The court also pointed out that The mere
destruction or disfigurement of a symbols physical manifestation does not diminish or
otherwise affect the symbol itself United States v. Eichman, 496 U.S. 310 (1990)
For the past eleven years, congress has made every effort to legally prohibit the
desecration of the American flag. The only way they can do that is to change the
Constitution itself, and to place an outright restriction on the first amendment, and
infringe upon our right to freedom.
It would be a hollow victory indeed if we preserved the symbol of our freedoms by
chipping away at those fundamental freedoms themselves. John Glenn 
George E. Bushnell Jr. President of the American Bar association argues that he did not
serve his country to protect the physical symbol of our country, but rather to protect
the ideals that it represents especially the wrong-headed, ill considered, offensive
political speech. He also argues that Not once in the more than 200 years since those
freedoms were established have we seen fit to tinker with these principles.
To create an amendment such as the proposed would be the first in our nation's history to
restrict the freedom of political protest and speech. 
The proposed amendment would read  The Congress shall have the power to prohibit the
physical desecration of the flag of the United States of America.
Many questions have to be answered before accepting such an amendment. What can be
considered a flag of the United States of America? How about those little paper one used
during celebration that always end up in the garbage or on the floor at the end of the
night? What about clothing that has a flag on it. What is to be done with those when they
are not wanted anymore? And what about those bumper stickers with flags on them that get
mad splashed and filthy, who is going to determine where desecration of the American flag
begins, and where it ends?
The proper way to dispose of a flag once it is old or worn is to burn it. What if someone
were burning a flag to dispose of it, not to make a statement, how could they prove their
story in a court of law once the evidence was burned. Every lawyer will tell you that the
toughest thing to prove is intent. John Glenn
I don't believe that the issue of people burning an American flag in protest is serious
enough to warrant the proposed amendment and to take away the very rights that our
nations flag represents.
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. Texas v. Johnson 491 U.S. 397 (1989)
Bibliography
WORKS CITED
Responding to Extremist Speech: 20 frequently asked questions. Anti - 
defamation league homepage. http://www.adl.org/frames/front_20faq.html
(2/5/00)
U.S. Supreme Court: United States v. Eichman, 496 U.S. 310 (1990) 
FindLaw homepage. http://caselaw.findla...case.pl?court (2/15/00)
Statement of the honorable John Glenn...April 28, 1999. 
http://www.senate.gov/~judiciary/42899jg.htm (2/12/00)
Statement of George E. Bushnell Jr...August 4, 1995 Flag burning homepage
http://www.esquilax.com/flag/news9.html (2/15/00)
Chronology of flag burning Flag burning homepage.
http://www.esquilax.com/flag/chronlog.html 
Katsh, Ethan. Taking sides: Clashing Views on Controversial Legal Issues. 
Connecticut: Dushkin/McGraw-Hill. 1998.