Burning the American flag has always been one of the most shocking and controversial means of protest, from hippies in the 1960s to today, with ananti-Trump flag-burning demonstration outside the Republican National Convention last month. Is the action an acceptable form of free speech, or should it be illegal?
Rep. Steve Womack (R-AR3) and Sen. David Vitter (R-LA) think it should be illegal. They have sponsored H.J.Res. 9 in the House and S.J.Res. 21 in the Senate, which would propose a constitutional amendment banning the practice.
What supporters say
Supporters argue that the Stars and Stripes is one of our country’s most cherished symbols and should be immune from desecration.
“Throughout our nation’s history, Americans have made the ultimate sacrifice for the values espoused in our flag, and as a veteran, I believe it is disgraceful to allow it to be desecrated,” said Womack, the lead House sponsor, in a press release. “Our flag is not only one of the greatest symbols of our nation, it’s one of the most prominent symbols of freedom and democracy in the world. We should be allowed to protect it.”
What opponents say
None of the amendment’s opponents argue in favor of flag burning, with most couching their opposition by mentioning that while they personally oppose the practice, they nevertheless feel that it should be considered protected speech.
The American Civil Liberties Union (ACLU) on their websites lists several reasons to oppose an amendment, including:
> “This amendment is injurious to one of the very freedoms the flag symbolizes: free speech. Freedom cannot survive if exceptions to the First Amendment are made when someone in power disagrees with an expression. This amendment may provoke rather than diminish the very acts it purports to curtail. This amendment would be the beginning, not the end, of the question of how to regulate a certain form of expression.”
The federal government and 48 states had passed flag-burning amendments or laws before the Supreme Court struck them all down in 1989. (More on that court decision below.) In the 1990s and 2000s, Congress voted at least six times on an amendment to ban flag-burning. Every time it passed the required two-thirds support in the House, but failed to clear that threshold in the Senate.
Though a joint resolution to that effect has been introduced in every Congress since 2005–06, none of the subsequent versions appear to have ever received a vote.
Where the presidential candidates stand
Republican presidential nominee Donald Trump supports the measure. “Personally, I don’t think it should be legal. Let me ask you a question. It didn’t used to be legal, did it? I see more and more burning of the flag. Did it used to be legal? People burning the flag, I don’t like them in this country,” Trump told the Daily Caller.
Hillary Clinton actually co-sponsored the 2005 version of the legislation as a New York senator, though she voted against the final version of the bill. Clinton does not appear to have weighed in during the past decade or on the campaign trail. She did condemn the burning of an Israeli flag near the Democratic National Convention last month.
President Obama voted against the flag-burning amendment in 2005 as an Illinois senator.
The Constitutional issue
Why a constitutional amendment instead of a law? Because the Supreme Court has previously invalidated a flag-burning ban back in 1989, in their 1989 case Texas v. Johnson. The arguments from the five justices in favor and the four justices in dissent mirror the arguments today.
“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. We have not recognized an exception to this principle even where our flag has been involved,” Justice William J. Brennan wrote for the Court’s majority. “The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.”
“The… statute deprived Johnson of only one rather inarticulate symbolic form of protest — a form of protest that was profoundly offensive to many — and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy,” Justice William Rehnquist wrote in dissent. “It was Johnson’s use of this particular symbol, and not the idea that he sought to convey by it or by his many other expressions, for which he was punished.”
A Constitutional amendment like the one being proposed in H.J.Res. 9 and S.J.Res. 21 would remove the First Amendment protection that the Supreme Court’s decision was based on.
The House version has 40 cosponsors, 38 Republicans and two Democrats: Rep. Brad Ashford (D-NE2) and Rep. Daniel Lipinski (D-IL3). It’s been referred to the House Judiciary Committee but has yet to receive a vote. The Senate version has nine cosponsors, all Republicans. It has not yet received a vote in the Senate Judiciary Committee.
Even if Congress were to agree to the joint resolution, the Constitutional amendment would still need the approval of at least three-quarters of the states, or 38 state legislatures.