Abstract:

Old Glory holds a special place in the hearts of many Americans.  The flag symbolizes the spirit and ideals of freedom embodied in the Constitution in which thousands of people have given their lives to defend over the course of American history.  These are the same spirit and ideals of freedom that make flag burning one of the most legally and politically divisive issues in America.   When does love for this venerable object trespass upon the fundamental rights it represents?   This paper explains in detail the legal history of flag burning and the course it has taken through the judicial and legislative system. It then assumes the uneasy task of predicting the future of flag protection in the federal government.

Introduction

In times of war and national strife, the American people have a history of rallying behind the flag.  The Stars and Stripes have long stood as a symbol of the fundamental and inalienable rights that our revolutionary forefathers authored into the Constitution.  These rights distinguish America from other nations because our system of laws is designed not to protect only the interests of an elite class of citizens or the popular majority.  Our system affords protection for the weak as well as the strong, the silent as well as the vocal, and the loathsome as well as the loved.

 With this in mind, can a nation that espouses such freedoms punish the expression of a handful of rogues each year that burn or in some other way desecrate the American flag?  If so, doesn’t this violate one of the most cherished provisions of the Bill of Rights - the First Amendment?  These are precisely the questions that scholars, politicians, and judges have been debating since the turn of the century, with no indication of a real advantage on either side of the issue.

 Various polling data suggest that a majority of the American people approve of some form of flag protection.  Passing legislation that protects the flag and suits the majority is not an easy prospect.  Flag protection legislation is plagued with problems on both the legal and political fronts.  Analyzing these problems, with an emphasis on legislative initiatives and the subsequent Supreme Court rulings, it is clear that nothing short of a constitutional amendment will offer Old Glory any type of sustainable protection.  With the current political landscape, the chances for this ultimate piece of legislation are slim.
 

Legal Definition of Flag Burning

 The legal definition of flag burning is a very evasive topic. It is one of those; “I’ll know it when I see it,” types. Over the years there have been myriad variations of the definition, but they all come back to one thing -- the American flag is a symbol. It represents patriotism and national pride for all Americans. It is the one unique object that unites and celebrates the diversity of America as a nation. It is a symbol of hopes and dreams of the American people.

 In the same breath, the willful destruction of the flag also stands as a symbol of the freedoms held in America. A burning flag not only represents political speech, but also opposition to an issue and a reminder of shattered or unobtained dreams.

 The definition of “flag,” in West’s Encyclopedia of American Law, is “the official banner of a state or nation, often decorated with emblems or images that symbolize that state or nation” (46).  Strict rules in the United States Code dictate how, when and where a flag may be displayed.  It also states how the flag may be used and details the appropriate way to dispose of a worn or ruined flag. The Supreme Court in various judgments has defined what can and cannot be prohibited with reference to the flag.  In two particular cases, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), and Taylor v. Mississippi, 319 U.S. 583 (1943), the Court signaled a turn toward supporting “the notion that freedom of speech extends to symbolic as well as oral and written speech” (West’s 47).

 In the early 1900s, long before the above cases, the Court recognized the validity of the flag as a symbol of the nation and an object of patriotic fervor. They did this in Halter v. Nebraska, 205 U.S. 34 (1907), which set the precedent for cases upholding various anti-flag desecration statutes.  Halter occurred years before the Court incorporated the Fourteenth Amendment, which made the First Amendment applicable to the States. The statutes though in many cases define flag desecration as, “(by word or act) casting contempt on a flag by mutilating, defacing, defiling, burning or trampling upon it” (West’s 741).

 The intricate problem with the above wording is the phrase “by word...cast contempt.” In later years, Court opinions found this form of expression to be protected by First Amendment guarantees of freedom of speech.  In such cases, actual words against the flag are protected, but action against it may or may not be, depending on what exactly was done (Hurwitz 116).

 If a Flag Burning Protection Amendment were passed, the federal government and legislatures of all 50 states would have the freedom to pass any law against the act of flag burning. This could be defined however they may choose.  The only way to gain insight into the definition of flag desecration is by looking at the cases discussed later in the paper and at the United States Code currently in force in Washington, D.C.:

4 USC Sec. 3
Any person who, within the District of Columbia, in any manner, for exhibition or display, shall place or cause to be placed any word, figure, mark, picture, design, drawing, or any advertisement of any nature upon any flag, standard, colors, or ensign of the United States of America; or shall expose or cause to be exposed to public view any such flag, standard, colors, or ensign upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed any word, figure, mark, picture, design, or drawing, or any advertisement of any nature...

History and Landmark Cases

 In 1968, Congress enacted a Federal Flag Protection Act. This occurred during the Vietnam conflict when flag burning became a popular method of protesting the war. For the next 20 years, the Court consistently upheld the constitutionality of the Act (CRS 2).

 In Spence v. Washington, 418 U.S 405 (1974), the Court started to change gears. On May 20, 1970, Spence, a college student, hung his flag from the window of his apartment. The flag was upside down, and half of the flag’s front was covered in removable black tape shaped in the form of a peace sign.  Spence was tried under a Washington improper use statute that stated:
No person shall, in any manner, for exhibition or display: (1) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States…
The Supreme Court found Spence’s conduct allowable and ruled the statute was unconstitutional. They said that the flag was privately owned and there was no risk of breaching the peace. According to the Court, Spence’s actions were a form of communication.  Citing Street v. New York, 394 U.S. 576 (1969), the Court noted that the Constitution settled that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”

 This was the beginning of a shift in the views of the Court with reference to flag protection issues. The landmark decision of Texas v. Johnson, 491 U.S. 397 (1989) was the result of this shift. Gregory Lee Johnson, in 1984, participated in a political demonstration while the Republican National Convention was taking place. The purpose of the event was to protest the policies of the Reagan administration and certain Dallas-based corporations. They marched rowdily through the Dallas streets. Johnson did not take part in these actions, although he did accept a flag from a demonstrator.  In front of Dallas City Hall, he doused the flag with kerosene and set it on fire. No one was physically injured, but bystanders said that they were very insulted by this action.

 Justice Brennan wrote for the majority that ruled in favor of Johnson. The freedom guaranteed by the Constitution to be intellectually diverse encompasses the freedom to publicly express one's opinion about the flag. The restriction on Johnson was content-based because the Texas law under which Johnson was tried was not aimed at protecting the physical integrity of the flag in all circumstances; rather, it protected it against impairments that would cause serious offense to others.
Since the landmark Johnson decision in 1989 by the Supreme Court, there have been numerous attempts by members of both political parties in Congress to bring forth a constitutional amendment to prohibit the desecration of the American flag.

 The Supreme Court announced its narrow 5-4 decision in Johnson on June 21, 1989.  Both the House and the Senate on October 12, 1989, expediently adopted H.R. 2978, a federal statute to protect the American flag, also known as the Flag Protection Act of 1989.  This statute would amend section 700 of Title 18 of the United States Code to protect the physical integrity of the flag.  The primary purpose was to remove language that the courts could find suppressed a certain type of expression. It needed to pass the test stated in United States v. O’Brien, 391 U.S. 367 (1968), where the government has to prove that the statute furthers an important or substantial governmental interest. Under the Flag Protection Act “intentionally, mutilating, defacing, physically defiling, burning, maintaining on the floor or ground, or trampling upon the flag of the United States” (CRS 3), would become criminal acts.

A few days later, on October 28, 1989, this House Resolution became Public Law 101-131.  President Bush, although an avid supporter of flag protection, did not sign this law. Bush publicly expressed his belief that nothing short of a constitutional amendment would protect the flag because of the difficulty in tailoring an Act that could pass the scrutiny of the Supreme Court.
 
Challenges to the Flag Protection Act of 1989

 Immediately following the enactment of the Flag Protection Act of 1989, a rash of flag burning broke out across the country, in defiance of the new law.  Two cases in particular captured the attention of the U.S. Justice Department.  When the Justice Department decided to prosecute the violators in early 1990, the cases became the first tests of this controversial legislation.  Ultimately, these cases illustrated the difficulty of producing constitutionally valid flag protection laws.

 The first case, U.S. v. Haggerty, 731 F.Supp. 425 (W.D. Wa. 1990) involved four protestors who burned a flag belonging to a post office in Seattle on the morning of October 28, 1989.  The second case, U.S. v. Eichman, 731 F.Supp. 1123 (D.D.C. 1990), took place two days later in Washington, D.C.  It involved three protestors burning several flags on the steps of the Capitol building.

 Attorneys for the protestors in both cases argued in U.S. District Court that the Flag Protection Act was unconstitutional on its face and as applied against the offenders.  The Justice Department had mixed views about prosecuting the case.  On the one hand, it believed that the law was unconstitutional.  On the other, its duty was to prosecute violations of federal law.

The [Justice] department attempted to square this circle by simultaneously telling the district courts that: (1) its own position continued to be that the [Flag Protection Act] was unconstitutional under the Johnson precedent and that the congressional claim that the [Flag Protection Act] was constitutional under the O’Brien guidelines as a “content neutral” statute was not only incorrect but could have “serious adverse consequences” that might provide justifying precedent for “virtually any restriction on symbolic speech;” but that (2) the courts should nonetheless uphold the FPA on the grounds that the presidential endorsement of a constitutional amendment and congressional passage of the [Flag Protection Act] demonstrated that the government’s “only conceivable interest” behind the [law], namely to protect “the symbolic value of the flag,” was a “compelling” interest that met the Johnson standard of “most exacting scrutiny” under the First Amendment and therefore could overcome the admittedly purely suppressive purpose of the law (Goldstein 233-234).

On May 14, 1990, the Justice Department’s oral argument to the Supreme Court took a different approach than in the lower courts.  It argued that the Act was constitutional because Congress had carefully constructed the legislation to meet the guidelines outlined in Johnson.  Congress removed all language in the Act that singled out speech for prosecution.  The Act served to protect only the physical integrity of the flag, regardless if the individual burning the flag meant it as a disfavored form of expression.  The United States also claimed that flag desecration did not pass the 1974 Spence test of “expression,” which would give it full First Amendment protection.  This test required the delivering of a particularized message, rather than leaving a “major message gap” and resembling an “overload loudspeaker”  (Goldstein 237-238).

 The defense countered the Justice Department’s claims that the Act did not single out disfavored expression. It argued that the law allowed “patriotic” conduct that caused harm to the flag, for example, carrying the flag in battle.   Denouncing the argument that flag desecration did not warrant First Amendment protection, the defense declared that the government was seeking to cast the flag as a sacred image, while infringing on the freedoms it represented.  “Once people are compelled to respect a political symbol, then they are no longer free and their respect for the flag is quite meaningless,” the defense stated. “To criminalize flag burning is to deny what the First Amendment stands for” (Goldstein 238).

The Court delivered a 5-4 decision on June 11, 1990, very similar to its previous ruling on flag desecration.  Justice Brennan, who also composed the Johnson opinion, wrote the opinion.   The majority rejected the argument that flag desecration did not enjoy the full protection of the First Amendment.  The only question the Court considered was whether the Flag Protection Act differed enough from the Texas statute in Johnson to make it a constitutionally sound form of regulating the expressive conduct in this case (CRS 6).

Although the Court accepted the claim that the Act contained no explicit content-based limitations, it found that the governmental interest in regulating this conduct was related to the suppression of expression.   The language of the Act seemed constitutional on the surface, but it clearly sought to punish only conduct that amounted to disrespectful treatment of the flag.   Thus, the Act is little different from the Texas statute the Court rejected in 1989 (CRS 7).

 The dissenting opinion, authored by Justice John Paul Stevens, also followed closely to the dissent in Johnson.  He stated that the government had a legitimate interest in preserving the symbolic value of the flag because the flag represents the “ideas of liberty, equality, and tolerance -- ideas that Americans have passionately defended and debated throughout history.”  Regulation of this particular form of expressive conduct was justified because the Act did not rule out other means of communicating the idea (Goldstein 239-240).

 The narrow 5-4 majority illustrates two key factors concerning the future of First Amendment protection of flag desecration.  On the one hand, if the balance of Justices shifts to the political right, then the likelihood of a future anti-flag desecration law passing judicial review could increase.  On the other hand, unless the shift takes place there is little chance that anything short of a constitutional amendment will be able to protect Old Glory from harm.  This is discussed in greater detail later in this paper.

History of Legislation and the Opponents and the Proponents of a Constitutional Amendment Against Flag Desecration

After the Eichman ruling, Flag Amendment supporters wasted no time introducing a Joint Resolution on the House Floor for a constitutional amendment on June 21, 1990.  Titled H.J.R. 350, this bill called for a written change into the Constitution to legally protect the flag from being desecrated.  S.J.R. 332, also known as the Dole-Heflin Amendment, was brought onto the Senate floor around the same time.  Both in the House and Senate, measures to bring about an amendment to the Constitution failed.

 During the 101st Congress, the chief proponents of the Flag Amendment were Republican Sen. Bob Dole, R-Kan., and Sen. Howell Heflin, D-Ala.  They sponsored in 1990 the aforementioned failed S.J.R. 332.  Rep. Henry Hyde, R-Ill., was a strong supporter in the House.  On June 21, 1990, he made several remarks on the House floor, claiming that supporters of the constitutional amendment were trying to propose a correction to the mistake the Supreme Court made in striking down the Act.  Rep. Hyde emotionally appealed to members of Congress to catch the falling flag.
On the opposite end of the spectrum, strong support mounted against a constitutional amendment to protect the flag.  Sen. Bob Kerrey, D-Neb., a Congressional Medal of Honor recipient and ex-Navy SEAL, served as a vocal opponent of a Flag Protection Amendment.  After President Bush publicly expressed his support for a constitutional amendment to prohibit flag desecration at a ceremony in front of the Iwo Jima Memorial, Sen. Kerrey rebuked the President as well as the Republican Party for several reasons.  He criticized them for trying to divide America over an issue that he felt should not be a political matter.  Sen. Kerrey also accused President Bush of using the American flag as a political tool, desecrating the meaning and the symbol of the flag.  He argued that Old Glory would not be a grander symbol because of a constitutional amendment, but the flag’s value as a symbol would be lowered if it continued to be viewed as a political issue.

 The Speaker of House in 1990, Rep. Tom Foley, D-Wash., also opposed a constitutional amendment.  The same day Rep. Hyde made his speech; the Speaker voiced his opinion as well.  He argued that if the first Ten Amendments could be amended so easily, it would lower the threshold of resistance of the Bill of Rights to other amendments.  He attempted to reason with the conservative members of the House that the principle of conservatism was to preserve the basic institutions of liberty and not change them idly or casually in the face of pressure.
After the emotional battle for this change in the Constitution in the 101st Congress, a brief respite occurred in terms of legislation.  However the fight renewed once more when the 104th Congress convened.  On March 21, 1995, H.J.R. 79 was introduced onto the House floor.  On that same day, Sen. Orrin Hatch, R-Utah, and Sen. Heflin introduced S.J.R. 31 on the Senate floor.  Similar to the H.J.R. 350 and S.J.R. 332, these bills also called for a constitutional amendment to prohibit flag desecration.

On June 28, 1998, the House passed the Flag Amendment with an overwhelming 312-120 vote, showing majority support and support above the required 290 votes for it to pass in the House.  By July 20, the Senate Judiciary Committee had viewed and passed S.J.R. 31 on a 12-6 vote.  However, this amendment encountered an insurmountable obstacle before reaching the final process of sending the amendment to the states for ratification.  On December 12, S.J.R. 31 was four votes shy of passing, receiving a 63-36 vote.

In analyzing the debate over a constitutional amendment in Congress, it is obvious that several key members were vital to the survival and the ultimate failure of the bill.  Rep. Gerald Solomon, R-N.Y., served as a pivotal force to carry the bill through the House floor.  He was responsible for introducing the H.J.R.79 in 1990 and also the sponsor of the same bill in the 105th Congress.

Four days before the Senate voted on S.J.R 31, Sen. John Glenn, D-Ohio, spoke on behalf of the opponents of the constitutional amendment.  On December 8, 1995, he contended that it would be a hollow victory if Congress decided to preserve the symbol of America’s freedom by chipping away at that very freedom.   Sen. Glenn believed that even a fractional misguided minority had the right to express themselves under the Bill of Rights (Congressional Record, 1995, S18276-80).  Responding to Sen. Glenn’s statement, Sen. Heflin spoke in support of S.J.R. 31 on December 11, 1995.  He claimed that the flag reached the heart of what it meant to be an American and stated that burning the flag is a mockery of patriotic respect that so many Americans possess.

 After the Senate nearly passed a constitutional amendment protecting the flag, Rep. Solomon and Rep. William Lipinski, D-Ill., introduced a similar bill onto the floor of the 105th Congress, on February 13, 1997.  Scoring another victory for Flag Amendment proponents, the resolution, H.J.R. 54, passed easily in the House by a 310-114 vote.

Continuing the winning streak, Sen. Hatch and Sen. Max Cleland, D-Ga., presented S.J.R. 40 on February 4, 1998.  By June 17, the Senate Judiciary Subcommittee had approved the resolution.  The full committee held a hearing for S.J.R. 40 on July 8 and approved the resolution in an 11-7 vote.  It appeared that the amendment had strong backing and a good chance to pass in the Senate before the session ended.

On October 8, however, Sen. Kerrey and Sen. Patrick Leahy, D-Vt., objected to the attempt by Senate Majority Leader Trent Lott, R-Miss., to bring up the amendment for discussion on the Senate floor.  They cited the lack of time to clearly discuss the matter in order to deal properly with the resolution as a reason for their objection.  The two Democratic senators received support from Senate Minority Leader Tom Daschle, D-S.D., who placed a strong emphasis on the freedom of expression and the symbolic representation of flag desecration.  He stated that he firmly believes an amendment to protect the flag from desecration would seriously intrude on the rights of free expression and speech.

Proponents of the amendment argued this was a political maneuver before the November elections to protect those members who are against the flag amendment and have voted against such measures in the past.  Sen. Hatch argued that it was the appropriate time to discuss the significance and the values of the flag.  He stated this amendment would uplift American virtues against the moral decay and shameful behavior of popular culture.  He proposed that if the matter was not debated in this session, then it should be debated and voted upon as soon as possible in 1999.  Thus, the 105th Congress concluded without resolving the flag amendment debate.

 Judging by the congressional debate on the issue, the Flag Desecration Amendment is not a clearly cut bipartisan issue. The majority of Republicans support it with a good number of Democrats following suit.  There have been members; however, who have cut across party lines to either defend or block any attempt to bring about a constitutional amendment banning flag desecration.  Sen. Robert Bennet, R-Utah, and Sen. Mitch McConnell, R-Ky., voted against measures to write a constitutional amendment against flag desecration.  Similarly, Rep. Wayne Gilchrest, R-Md., voiced his opinion against such an amendment on the House floor on June 18, 1995.  He claimed that no government should be so powerful as to be able to differ between the freedom to be wise and the freedom to be stupid.

A few Democrats have crossed party lines as well.  Sen. Diane Feinstein, D-Calif., Sen. Heflin, and Sen. Cleland have been staunch supporters of such flag protection measures. Senators Heflin and Cleland introduced resolutions involving a constitutional amendment in the Senate.  Both Senators Feinstein and Heflin served on the Judiciary Committee and voted for S.J.R. 31.  In 1998, Feinstein sat on the Judiciary Committee again and voted to pass S.J.R. 40.  She reasoned that the flag as a symbol of this country should be protected from desecration.
 

Supreme Court Justices

There are nine sitting Justices of the United States Supreme Court; nine Justices who control our individual rights as granted by the Constitution through the power of Judicial Review.  As has been illustrated time and time again throughout the history of the Court, the opinion of issues tends to evolve over time parallel to the evolution of the Court.  This is the reason why the appointment process of a judge to the position of Supreme Court Justice is scrutinized so closely.

 The Court in 1989 held that flag desecration and burning were constitutionally protected activities under the First Amendment as they are considered symbolic speech.  Since the Johnson ruling, Congress has made numerous legislative attempts to overturn that decision.  No legislation has been signed into law since the Flag Protection Act of 1989, which the Court later declared unconstitutional in Eichman.  Since that decision, the composition of the Court has changed.  No longer are flag protection opponents Justices Brennan, Marshall, Blackmun and White presiding on the Court.  In their place sit four Justices, two appointed by former President Bush and two appointed by President Clinton.  The fate of anti-flag burning legislation falls in their hands, if it becomes an issue again.

 In the Johnson decision, two current Justices took part in the judgment of the Court.  Justice Kennedy, who as nominated by President Reagan in 1988 concurred with the majority opinion.  Originalist Justice Scalia, who was also nominated by President Reagan in 1986, concurrently sided with the decision of the majority.  However, Chief Justice Rehnquist and Justices O’Connor and Stevens all dissented from the Johnson majority.  This means that only four votes have the potential of being won if the question of the constitutionality of flag desecration were to come before the Court.

 Of those four votes, Justice Ginsburg and Justice Breyer are the only two Justices sitting on the Court who were nominated by a Democratic President.  President Clinton, who has publicly vocalized his position that flag burning should be protected by the First Amendment, appointed both Justices.  Realistically, Justices Ginsburg and Breyer probably share in his beliefs; however, there has not been a significant case since Eichman and Haggerty that has specifically dealt with the issue.  This fact could have an impact on future flag burning questions by the Court.  If Congress succeeds in passing flag protection legislation, it presents the possibility of another narrow decision.

 The decisions of the remaining two Justices will be the deciding factor of whether a Congressional Act such as the Flag Protection Act of 1989 becomes law.  President Bush appointed Justice Souter and Justice Thomas in 1990 and 1991 respectively.  Former President George Bush was a strong advocate of flag protection.  Although he did not sign the Flag Protection Act of 1989, he publicly endorsed his belief that flag desecration and burning are against fundamental constitutional principles.  He also played a major role in the push for the addition of a 27th Amendment to the Constitution to proclaim that “The Congress and the States Shall have the Power to Prohibit the Physical Desecration of the Flag of the United States” (Van Alstyne 328).  Based on his steadfast beliefs, it is logical to assume that the two men his predecessor, Ronald Reagan, appointed to the Supreme Court hold similar views.

 Although there have not been any decisions that directly relate to this topic, recent cases give rise to the possibility that Justice Thomas would side with the dissenting position in Johnson.  The biggest indicator of this is that Justice Thomas often follows the lead of Chief Justice Rehnquist.  He did so in Forysth v. Nationalist Movement, 505 U.S. 123 (1992) and in Denver Area Educational Telecommunications Consortium v. FEC, 518 U.S. 727 (1996).  While the two cases do not answer questions of expressive conduct and symbolic speech, the dissents of the Chief Justice and Justice Thomas uphold restrictions on speech, the same fundamental principle Chief Justice Rehnquist upheld in his 1989 decision. This increases the likelihood of a 4-4 tie.

 The key vote on the Court belongs to Justice Souter.  Despite the fact former Republican President Bush appointed Justice Souter to the Court, he has taken a much more moderate position than his fellow conservative colleague, Justice Thomas, and has not been afraid to take the minority position in several cases.  In the 1998 case, National Endowment for the Arts v. Karen Finley et al., S.Ct. WL33291 (No. 97-371), he alone dissented from the majority opinion by articulating the opinion in Johnson and concludes that “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.” This being the case, “Congress is generally not permitted to pivot discrimination against otherwise protected speech on the offensiveness or unacceptability of the views it expresses.”  With this view, Justice Souter could vote either way to break the tie, depending on whether he feels the historical significance of the flag is an exception to the paramount requirements of the First Amendment.

 If the Court is forced to deliberate on the issue of flag desecration again, there are many other factors that will determine the outcome of the decision, not just analytical information about the Justices themselves.  However, it remains an important component in the debate and will serve as a point of reference for those who engage in pursing flag protection legislation in the future.

Public Opinion and Politics

 Patriotism often becomes a hot topic during political elections.  The idea of protecting the Stars & Stripes is an emotional issue within the realm of patriotism that arouses strong feelings from the U.S. citizenry and many organized civic and special interest groups.  Experienced politicians and strategists recognize this fact, and that is why flag-protection legislation wins support from both sides of the political fence.   Although the prospect of enacting a constitutional amendment is a difficult one, it is not impossible.  Unless the electorate in presidential and congressional elections takes a drastic swing to the left, a constitutional amendment protecting the flag remains a realistic possibility.

 Depending on the poll examined, support of anti-flag desecration legislation among registered voters ranges from 60 percent to 80 percent.  In research conducted for the Citizens Flag Alliance in 1997, the research firm, Wirthlin Worldwide, found using a national survey that approximately 75 percent of American voters across all geographic and demographic subgroups supported a constitutional amendment to protect the flag.  A Gallup telephone poll in 1998 demonstrated similar results (Burrell, AP, 08 Sept. 98).

 Several veterans and civic groups strongly support protecting the flag.  These groups bring an organized message into the political debate.  The American Legion and its lobbying organization created expressly for this issue, the Citizens Flag Alliance, have been vocal about its support for an amendment since 1989, when the Supreme Court invalidated laws protecting the flag from desecration.  In 1998 at its 80th national convention, 12,000 Legionnaires expressed their support and many took the opportunity to e-mail their representatives in Congress about it (Nolan, Times-Picayune, 09 Sept. 98).

 When the Supreme Court ruled against the Flag Protection Act in Eichman, it essentially struck down the state statutes of 49 states with similar laws. The fact that all states, except Vermont, had flag protection laws shows an overwhelming amount of support at the state level.   This is significant because only 38 states have to approve an amendment before it becomes part of the Constitution.  With the Republicans controlling 29 state legislatures after the 1998 midterm elections, the odds are good that if Congress passes a flag protection amendment, it would be ratified.

 Support for an amendment in the U.S. House of Representatives has grown over the past eight years.  A primary reason for this may be the Republican congressional majority in 1995.  In 1990, a vote by the Democratic Congress rejected President Bush’s proposed amendment 254-177.  Similar vote by the Republican-controlled Congress passed overwhelmingly in 1995 and 1997.   The 1995 vote of 312-120 crossed party lines with 93 Democrats, who typically oppose such legislation, siding with Republicans on the issue (Goldstein 291).

 Although an amendment garnered vast support in the House, the two-thirds majority (67) needed in the Senate proved harder to obtain in 1995 and 1998.  In December 1995, the Senate came up four votes shy of passing the amendment and sending it to the states for ratification (Goldstein 291).   The proposed amendment in 1998, S.J.R. 40, had 61 bipartisan co-sponsors, but failed after two key Democratic senators blocked a vote on the Senate floor.  The future passage of an amendment in the Senate will depend heavily upon the Republican’s ability to maintain and increase their majority.

 Even though presidential candidates, such as Bob Dole, have campaigned on the flag protection amendment issue, the impact of the presidency on a flag protection amendment is unclear.  When former President Bush proposed constitutional amendments in 1989-1990, the issue received lengthy press coverage, public debate, and congressional attention.  However, the issue sank into obscurity when the House failed to muster the two-thirds majority to pass an amendment.  President Clinton openly opposes a change to the constitution to protect the flag.  Remarkably, the issue has gained support among national legislators.  With little public attention drawn to the subject in 1995, the flag protection advocates in the House surpassed the two-thirds majority needed by 24 votes (Goldstein 291).

The increase in congressional support perhaps has more to do with Republican gains than the influence of the president on this issue.  Although the president’s ability to control the vote of his party members in Congress could be a factor in the outcome of the vote, history suggests that the issue is larger than the political parties.  Many Democratic members of Congress may support an amendment, if for no other reason than not to seem anti-flag or unpatriotic.

Amendment Implications

If passed, a constitutional amendment outlawing flag burning would be the first change to the Bill of Rights in its more than 200 years of existence.  Opponents of the measure argue that changing it would set a dangerous precedent that would create a “slippery slope” for future decay of constitutional rights.  How can America stand as the model of freedom and democracy throughout the world, unless it allows all forms debate and dissent?  It also would lead to legal chaos by prompting endless litigation over the exact definition of “flag” and “desecration.”  Finally, instead of preventing flag desecration, the amendment may result in more cases of it from people protesting the measure  (Goldstein 293-294).

Flag protection advocates argue that an amendment would not affect free speech because flag desecration is conduct, not speech.  Professor Stephen Presser of the Northwestern University of School of Law spoke in support of a constitutional amendment:

It is now clear that only a Constitutional Amendment can protect the flag … My feeling is that rather than fearing such a Constitutional Amendment [Members concerned about supporting the amendment] should embrace it.  It is a profound demonstration of the American people, and is the people’s time-honored way of correcting erroneous constitutional interpretations of the Supreme Court.  The proposed Flag Protection Amendment is no infringement on the Bill of Rights.  It is instead, a wonderful exercise in the popular sovereignty the Bill of Rights was designed to protect.

Conclusion

The issue of flag protection will not fade away as long as patriotism and the First Amendment exist.  With this issue, it is ironic how the love for a nation and the love for its grandest symbol can clash with the ideals it represents.  For every person who torches a flag, there are thousands of people who treat it with the utmost respect.

The majority of the American people support some type of flag protection law, and that is one of the biggest problems with passing a flag protection statute.  If the country was founded on the ideals that everyone, no matter how unpopular, has a right to free expression, especially as it pertains to political issues, then how can it logically move to ban flag burning, which is an expressive activity that carries a hefty political message?  Should the First Amendment always neglect the wishes of the majority for the sake of a few?  Is that consistent with the ideals of democracy?

These are questions that America’s lawmakers have yet to resolve. The present composition of the Supreme Court makes it unlikely that another Flag Protection Act could survive judicial review.  Considering that the Republican Party, which traditionally supports flag protection measures, barely maintained control of Congress in this year’s elections, the prospects for a constitutional amendment passing in the 106th Congress are low.   The First Amendment and its freedoms remain safe as they have for 200 years, while Old Glory, the symbol of those freedoms, is sacrificed in the process.

Bibliography

West’s Encyclopedia of American Law. Volume 5. West Group: St. Paul, 1998.

Burrell, Cassandra.  “Senate GOP leaders tout poll to boost flag-desecration amendment.”  Associated Press, 09 Sept. 1998.

Goldstein, Robert Justin, ed.  Desecrating the American Flag: Key Documents of the Controversy from the Civil War to 1995.  Syracuse: Syracuse University Press, 1996.

Hurwitz, Leon. Historical Dictionary of Censorship in the United States. Greenwood Press:
Westport, 1985.

Levy, Leonard, ed. Encyclopedia of the American Constitution. Macmillan Publishing Company:
New York, 1986.

Luckey, John. “Flag Protection: A Brief History and Summary of Recent Supreme Court
Decisions and Proposed Constitutional Amendment.” Congressional Research Service:
14 July 1998.

Nolan, Bruce.  “Vets push flag amendment; legionnaires lobby lawmakers.”  The Times-Picayune.  09 Sept. 1998.

Van Alstyne, William W. First Amendment, Cases and Materials. Second Edition. The
Foundation Press, Inc. Westbury, New York. 1995. Page 328.
 

Copyright 1998
Bryn Dubow, Jeff Ezell, Kristina Wolfe, and Michelle Bergman
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