Flag Burning

Flag Burning
by Gene Johns 

In my opinion, while offensive to me and many others, burning the American flag in protest is an expression of speech and is therefore protected by the First Amendment of the U.S. Constitution.

When I express my opinion about flag burning, I often receive angry pushback and personal insults. I understand the reaction, but I stand firm in my view. Why? Because I value the freedoms the flag represents more than the symbol itself.

After all, burning a flag changes nothing and physically harms no one, provided the flag being burned is not mine, stolen from someone else, a flag of historical value, or a flag flying above federal, state, or local government buildings. Burning any of those previously listed flags would be a crime.

The U.S. Supreme Court has ruled that flag burning is protected symbolic speech under the First Amendment.

In the 1989 case Texas v. Johnson, the Court ruled 5–4 that Gregory Lee Johnson’s act of burning an American flag during a political protest was expressive conduct protected by the Constitution, even though it was deeply offensive to many Americans. The Court emphasized that freedom of speech protects even offensive expression.

In 1990, the Court reaffirmed this position in United States v. Eichman, striking down a federal flag protection law passed after the Johnson decision. The government itself conceded that flag burning constitutes expressive conduct.

On June 22, 2005, the United States House of Representatives approved a constitutional amendment that would have given Congress the power to prohibit the desecration of the American flag, including flag burning. On June 27, 2006, the amendment failed in the U.S. Senate by a single vote.

Fortunately, a majority of Senators agreed with me and valued the freedoms the flag represents more than the symbol itself.

Our Constitution does not protect us from actions or words that insult or anger us. If it did, I would invoke that constitutional protection to silence Barack Obama, Joe Biden, Chris Matthews, Rachel Maddow, Jon Stewart, CNN, NBC, ABC, CBS, and countless other political pundits whose rhetoric often infuriates me.

First Amendment protection is not limited to “pure speech,” such as books, newspapers, or spoken words. Symbolic speech, or nonverbal expression, such as flag burning, is also a form of protected speech. The very act of burning the American flag is a clear demonstration of one’s right to freedom of expression. To prohibit such action would violate the First Amendment of our Constitution.

However, there is something else to consider. If flag burning incites violence, then the individual responsible should be arrested for inciting violence or rioting—not for the specific act of burning the flag itself. In that case, I believe flag burning should be prohibited only when it is clearly intended to provoke violence or civil unrest.

That reminds me of an old argument concerning freedom of speech. One has the right to free speech, but that does not mean a person can falsely yell “fire” in a crowded theater when there is no fire. Such speech is intended to create fear and chaos and therefore is not protected.

The Supreme Court once wrote that freedom is “the matrix, the indispensable condition of nearly every other form of freedom.” By that definition, freedom would undoubtedly extend to citizens the right to burn Old Glory.

A few years ago, I noticed the Stars and Stripes flying above a post office that was faded and torn. In my opinion, that was more offensive and insulting than some disrespectful degenerate burning an otherwise insignificant flag.

Perhaps Congress should pass a law requiring the U.S. Postal Service and other federal, state, and local agencies to ensure that any American flag they display is kept in good condition. Flying a torn and faded Old Glory above government buildings is an insult to our heritage, disrespectful to our citizens, and, in my opinion, worse than burning a flag in protest.