Flag Desecration

The issue of flag desecration has been and continues to be a
highly controversial issue; on the one side there are those who
believe that the flag is a unique symbol for our nation which
should be preserved at all costs, while on the other are those
who believe that flag burning is a form of free speech and that
any legislation designed to prevent this form of expression is
contrary to the ideals of the First Amendment to our
Shawn Eichman, as well as the majority of the United States
Supreme Court, is in the latter of these groups. Many citizens
believe that the freedom of speech granted to them in the First
Amendment means that they can express themselves in any manner
they wish as long as their right of expression does not infringe
on the rights of others; others, however, believe that there are
exceptions to this right of speech. Such constitutional issues
need to be worked out by the Supreme Court, which uses its powers
of constitutional interpretation and judicial review to outline
the underpinnings of the Constitution and interpret the law.
The case which acted as an impetus for Eichmans actions was
that of Texas v. Johnson. In 1984, in Dallas, Gregory Johnson,
a member of the Revolutionary Communist Youth Brigade, a Maoists
society, publicly burned a stolen American flag to protests the
re-nomination of Ronald Reagan as the Republican candidate (Levy
217). The police consequently arrested Johnson not for his
message but for his manner in delivering it; he had violated a
Texas statute that prohibited the desecration of a venerated
object by acts that the offender knows will seriously offend on
or more persons (Downs 83). Johnson had hoped to capture
Americas attention with this burning, and he did; however, his
protest earned him more than a moment in the national spotlight.
Under Texass tough anti-flag-burning statute, Johnson was fine
$2,000 and sentenced to a year in prison (Relin 16).
In Texas v. Johnson a majority of the Supreme Court
considered for the first time whether the First Amendment
protects desecration of the United States flag as a form of
symbolic speech. A sharply divided Court had previously dealt
with symbolic speech cases that involved alleged misuses of the
flag. While the Court had ruled in favor of the defendants in
those cases (Street v. New York, 1969; Smith v. Goguen, 1974;
Spence v. Washington, 1974), it had done so on narrow grounds,
refusing to confront the ultimate question status of flag
desecration (Downs 868). The court ruled in favor of Johnson
(5-4), believing that there was no evidence that Johnsons
expression threatened an imminent disturbance of the peace, and
that the statutes protection of the integrity of the flag as a
symbol was improperly directed at the communicative message
entailed in flag burning (Downs 868). Justice Brennan concluded
by saying, We do not consecrate the flag by punishing its
desecration, for in doing so we dilute the freedom that this
cherished emblem represents (Witt 409).
Reacting to this ruling, the Untied States Congress sought
to pass legislation that would overturn it. The Flag Protection
Amendment was introduced and then voted down, but then the Flag
Protection Act was passed in both houses. President Bush allowed
this act to pass without his signature, an expression of his
preference for a Constitutional amendment (Apel Flag
Protection). The Act criminalized the conduct of anyone who
knowingly mutilates, defaces, physically defiles, burns,
maintains on the floor or ground, or tramples upon a United
States flag, except conduct related to the disposal of a worn or
On October 30th, 1989, the day the bill went into effect,
hundreds of people burned flags; among them was Shawn Eichman.
The Justice Department admitted that the law was unconstitutional
under Texas v. Johnson, but prosecuted anyways, hoping to get the
court to reverse its decision. The court decided that flag
desecration is a form of political expression that is protected
under the First Amendment rights to free speech, and ruled in
favor of Eichman by a vote of 5 to 4, thus nullify the Flag
Protection Act which Eichman had been protesting (House 1144).
The majority consisted of Justices Brennan, Marshall, Blackmun,
Scalia, and Kennedy. Dissenting were Justices Stevens, Renquist,
For the majority opinion, Justice Brennan wrote the
Although the Flag Protection Act contains no explicit
content-based limitation on the scope of prohibited
conduct, it is nevertheless clear that the
Governments asserted interest is related to the
suppression of free expression…Moreover, the precise
language of the Acts prohibitions confirms Congress
interest in the communicative impact of flag
destruction…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 offensive or
disagreeable. Punishing desecration of the flag
dilutes the very freedom that makes this emblem so
revered, and worth revering. (Supreme)
According to Justice Anthony Stevens, The landmark decision was
simply a pure command of the Constitution. It is poignant but
fundamental that the flag protects even those who hold it in
Dissenting, Justice Stevens, along with the Chief Justice,
…It is equally well settled that certain methods of
expression may be prohibited if(a) the prohibition is
supported by a legitimate societal interest this is
unrelated to suppression of the ideas the speaker
desires to express; (b) the prohibition does not entail
any interference with the speakers freedom to express
those ideas by other means; and (c) the interest in
allowing the speaker complete freedom of choice
among alternative methods of expression is less
important than the societal interest supporting the
Justice Stevens concluded his opinion that by destroying the
symbol of freedom, the individual communicates a willingness to
By burning the embodiment of Americas collective
commitment to freedom and equality, the flag burner
charges that the majority has forsaken the
commitment–that continued respect for the flag is
nothing more than hypocrisy. Such a charge may be made
even if the flag burner loves the country and zealously
pursues the ideals that the country claims to honor.

Groups such as the American Civil Liberties Union (ACLU)
praised the ruling. Laura W. Murphy, Director of the ACLUs
National Washington Office showed her support when she said, The
First Amendment is this countrys first principle. It is a
critical part of what has made our country uniquely free. We
have been strengthened, not weakened, by the sweep of its
language and by the Supreme Courts adherence to its true
Many anti-flag desecration groups, particularly the
Citizens Flag Alliance (CFA), were outraged by this ruling.
These organizations petitioned Congress to reintroduce the Flag
Protection Amendment. Since the ratification of the Constitution
in 1789, some 10,000 attempts have been made to amend it. They
have included ideas such as eliminating the Senate, and
renaming the country the United States of Earth. But never in
the nations history has anyone tried to amend the Bill of
Rights. (Relin 18) To do so would be a dramatic step in that it
could pave the way for further future limitations on our
For an amendment to the Constitution to be made, The house
and the Senate have to propose (each by 2/3 vote) exactly the
same text before the amendment is open for ratification by the
states (Apel Hasbrouck). If the amendment (to the First
Amendment) is passed in both chambers, it then goes to the states
In 1990, both the House and Senate failed to muster the
required two-thirds majority to pass the Flag Protection
Amendment (Citizens). In 1995, however, the amendment cleared
the House by a vote of 312-120. This Senate Joint Resolution 31
(S.J. Res. 31) was also passed by the Senate Judiciary Committee
by a vote of 12-6, but was then rejected by the Senate by only 3
votes. In February of 1998, Senators Orrin Hatch (R-UT) and Max
Cleland (D-GA) reintroduced the amendment as S.J. Res. 40, but it
was decided that there was not enough time left in the term to
vote on the amendment. Most recently, in March of 1999, the Flag
Protection Amendment was reintroduced once again as S. J. Res.

14. Once again, it was passed in the House and by the Senate
Judiciary Committee, but to date has not become ratified.

Among those against the original amendment in 1990 were
George Mitchell, Tom Daschle, Patrick Leahy, Dale Bumpers, David
Boren, Howard Metzenbaum, Barbara Mikulski, Jeff Bingaman, Bill
Bradley, Paul Simon, and Christopher Dodd. Perhaps the most
ardent opponent to the amendment was Ted Kennedy. In an eloquent
speech he gave on June 11, 1990 he stated:
When we pledge allegiance to the flag, we pledge
allegiance to the principles for which it stands. Few,
if any, of those are more fundamental to the strength
of our democracy than the first amendments guarantee
of freedom of speech. Let us not start down this
disastrous road of restricting the majestic scope of
the first amendment by picking the kinds of speech that
are to be permitted in our society. (Ted)
He goes on to mention that this constitutional amendment might
irreparably damage the separation of powers that has protected
our constitutional freedoms throughout history…because judges
insulated from public pressure can best evaluate the claims of
unpopular minorities. Kennedy is saying here that since
Congress can be greatly influenced by special interest groups,
such as the Citizens Flag Alliance, it is the responsibility of
the judiciary branch of government to objectively rule as to what
If the Senate amends the Bill of Rights for the first time
in history by passing the Flag Protection Amendment, who knows
where they would stop. Every nation in the world has a flag,
and many of them, including some democracies, have laws against
desecrating their flag. No other nation has a Bill of Rights
(Levy 219). The year 1991 marked the 200th anniversary of its
ratification, and, in my opinion, it requires no limiting
amendment. The American people understand that they are not
threatened by flag burners, and the American people prefer the
First Amendment undiluted. They understand that imprisoning a
few extremists is not what patriotism is all about; forced
patriotism is surely not American. Rep. Gary Ackerman (D-New
York) expressed these ideas when he said,
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…we are offended; and to change our
Constitution because someone offends us is, in itself,
unconscionable. (Apel Chronology).
Flag burning may be all wrong, but a lot of wrongheaded
speech is protected by the First Amendment. The Bill or Rights
is a wonderfully terse, eloquent, and effective summation of
individual freedoms, and there is no need to add except for flag
burners. That exception, as the Court majority in United States
v. Eichman realized, might show that the nation is so lacking in
faith in itself that it permits the Johnsons and Eichmans to
diminish the flags meaning. They are best treated, as Brennan
argued, by saluting the flag that they burn or by ignoring them
contemptuously, not by paving the way for an assault on our
In this research, I noted that all of the proponents for the
Eichman decision who were also against the Flag Protection
Amendment used very logical, well-structured arguments, while
those dissenting and in support of the amendment to an
amendment use mostly emotional arguments and focus on the
respect owed to all those who have died in the military
protecting the nation. These in the latter group seem usually to
be associated with the military themselves (e.g. Major General
Patrick H. Brady is the Board Chairman of the Citizens Flag
I entirely agree with the Supreme Courts ruling in this
case. Justice Stevens argued that flag-burning was not an
acceptable form of expression because people could convey their
views by other means; he seems to have failed to realize,
however, that it is not the right of the government to limit one
to a certain means of voicing his or her opinions. Flag burning
is a form of protest which rarely occurs and which does little
but offend others. Perhaps a law such as the Flag Protection
Act, while unconstitutional, is permissible as a means of
silencing organization such as the CFA, but an amendment to our
Bill of Rights if certainly going too far.
The issue of flag desecration has been and continues to be a
highly controversial issue; on the one side there are those who
believe that the flag is a unique symbol for our nation which
should be preserved at all costs, while on the other are those
who believe that flag burning is a form of free speech and that
any legislation designed to prevent this form of expression is
contrary to the ideals of the First Amendment to our
Shawn Eichman, as well as the majority of the United States
Supreme Court, is in the latter of these groups. Many citizens
believe that the freedom of speech granted to them in the First
Amendment means that they can express themselves in any manner
they wish as long as their right of expression does not infringe
on the rights of others; others, however, believe that there are
exceptions to this right of speech. Such constitutional issues
need to be worked out by the Supreme Court, which uses its powers
of constitutional interpretation and judicial review to outline
the underpinnings of the Constitution and interpret the law.
The case which acted as an impetus for Eichmans actions was
that of Texas v. Johnson. In 1984, in Dallas, Gregory Johnson,
a member of the Revolutionary Communist Youth Brigade, a Maoists
society, publicly burned a stolen American flag to protests the
re-nomination of Ronald Reagan as the Republican candidate (Levy
217). The police consequently arrested Johnson not for his
message but for his manner in delivering it; he had violated a
Texas statute that prohibited the desecration of a venerated
object by acts that the offender knows will seriously offend on
or more persons (Downs 83). Johnson had hoped to capture
Americas attention with this burning, and he did; however, his
protest earned him more than a moment in the national spotlight.
Under Texass tough anti-flag-burning statute, Johnson was fine
$2,000 and sentenced to a year in prison (Relin 16).
In Texas v. Johnson a majority of the Supreme Court
considered for the first time whether the First Amendment
protects desecration of the United States flag as a form of
symbolic speech. A sharply divided Court had previously dealt
with symbolic speech cases that involved alleged misuses of the
flag. While the Court had ruled in favor of the defendants in
those cases (Street v. New York, 1969; Smith v. Goguen, 1974;
Spence v. Washington, 1974), it had done so on narrow grounds,
refusing to confront the ultimate question status of flag
desecration (Downs 868). The court ruled in favor of Johnson
(5-4), believing that there was no evidence that Johnsons
expression threatened an imminent disturbance of the peace, and
that the statutes protection of the integrity of the flag as a
symbol was improperly directed at the communicative message
entailed in flag burning (Downs 868). Justice Brennan concluded
by saying, We do not consecrate the flag by punishing its
desecration, for in doing so we dilute the freedom that this
cherished emblem represents (Witt 409).
Reacting to this ruling, the Untied States Congress sought
to pass legislation that would overturn it. The Flag Protection
Amendment was introduced and then voted down, but then the Flag
Protection Act was passed in both houses. President Bush allowed
this act to pass without his signature, an expression of his
preference for a Constitutional amendment (Apel Flag
Protection). The Act criminalized the conduct of anyone who
knowingly mutilates, defaces, physically defiles, burns,
maintains on the floor or ground, or tramples upon a United
States flag, except conduct related to the disposal of a worn or
On October 30th, 1989, the day the bill went into effect,
hundreds of people burned flags; among them was Shawn Eichman.
The Justice Department admitted that the law was unconstitutional
under Texas v. Johnson, but prosecuted anyways, hoping to get the
court to reverse its decision. The court decided that flag
desecration is a form of political expression that is protected
under the First Amendment rights to free speech, and ruled in
favor of Eichman by a vote of 5 to 4, thus nullify the Flag
Protection Act which Eichman had been protesting (House 1144).
The majority consisted of Justices Brennan, Marshall, Blackmun,
Scalia, and Kennedy. Dissenting were Justices Stevens, Renquist,
For the majority opinion, Justice Brennan wrote the
Although the Flag Protection Act contains no explicit
content-based limitation on the scope of prohibited
conduct, it is nevertheless clear that the
Governments asserted interest is related to the
suppression of free expression…Moreover, the precise
language of the Acts prohibitions confirms Congress
interest in the communicative impact of flag
destruction…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 offensive or
disagreeable. Punishing desecration of the flag
dilutes the very freedom that makes this emblem so
revered, and worth revering. (Supreme)
According to Justice Anthony Stevens, The landmark decision was
simply a pure command of the Constitution. It is poignant but
fundamental that the flag protects even those who hold it in
Dissenting, Justice Stevens, along with the Chief Justice,
…It is equally well settled that certain methods of
expression may be prohibited if(a) the prohibition is
supported by a legitimate societal interest this is
unrelated to suppression of the ideas the speaker
desires to express; (b) the prohibition does not entail
any interference with the speakers freedom to express
those ideas by other means; and (c) the interest in
allowing the speaker complete freedom of choice
among alternative methods of expression is less
important than the societal interest supporting the
Justice Stevens concluded his opinion that by destroying the
symbol of freedom, the individual communicates a willingness to
By burning the embodiment of Americas collective
commitment to freedom and equality, the flag burner
charges that the majority has forsaken the
commitment–that continued respect for the flag is
nothing more than hypocrisy. Such a charge may be made
even if the flag burner loves the country and zealously
pursues the ideals that the country claims to honor.

Groups such as the American Civil Liberties Union (ACLU)
praised the ruling. Laura W. Murphy, Director of the ACLUs
National Washington Office showed her support when she said, The
First Amendment is this countrys first principle. It is a
critical part of what has made our country uniquely free. We
have been strengthened, not weakened, by the sweep of its
language and by the Supreme Courts adherence to its true
Many anti-flag desecration groups, particularly the
Citizens Flag Alliance (CFA), were outraged by this ruling.
These organizations petitioned Congress to reintroduce the Flag
Protection Amendment. Since the ratification of the Constitution
in 1789, some 10,000 attempts have been made to amend it. They
have included ideas such as eliminating the Senate, and
renaming the country the United States of Earth. But never in
the nations history has anyone tried to amend the Bill of
Rights. (Relin 18) To do so would be a dramatic step in that it
could pave the way for further future limitations on our
For an amendment to the Constitution to be made, The house
and the Senate have to propose (each by 2/3 vote) exactly the
same text before the amendment is open for ratification by the
states (Apel Hasbrouck). If the amendment (to the First
Amendment) is passed in both chambers, it then goes to the states
In 1990, both the House and Senate failed to muster the
required two-thirds majority to pass the Flag Protection
Amendment (Citizens). In 1995, however, the amendment cleared
the House by a vote of 312-120. This Senate Joint Resolution 31
(S.J. Res. 31) was also passed by the Senate Judiciary Committee
by a vote of 12-6, but was then rejected by the Senate by only 3
votes. In February of 1998, Senators Orrin Hatch (R-UT) and Max
Cleland (D-GA) reintroduced the amendment as S.J. Res. 40, but it
was decided that there was not enough time left in the term to
vote on the amendment. Most recently, in March of 1999, the Flag
Protection Amendment was reintroduced once again as S. J. Res.

14. Once again, it was passed in the House and by the Senate
Judiciary Committee, but to date has not become ratified.

Among those against the original amendment in 1990 were
George Mitchell, Tom Daschle, Patrick Leahy, Dale Bumpers, David
Boren, Howard Metzenbaum, Barbara Mikulski, Jeff Bingaman, Bill
Bradley, Paul Simon, and Christopher Dodd. Perhaps the most
ardent opponent to the amendment was Ted Kennedy. In an eloquent
speech he gave on June 11, 1990 he stated:
When we pledge allegiance to the flag, we pledge
allegiance to the principles for which it stands. Few,
if any, of those are more fundamental to the strength
of our democracy than the first amendments guarantee
of freedom of speech. Let us not start down this
disastrous road of restricting the majestic scope of
the first amendment by picking the kinds of speech that
are to be permitted in our society. (Ted)
He goes on to mention that this constitutional amendment might
irreparably damage the separation of powers that has protected
our constitutional freedoms throughout history…because judges
insulated from public pressure can best evaluate the claims of
unpopular minorities. Kennedy is saying here that since
Congress can be greatly influenced by special interest groups,
such as the Citizens Flag Alliance, it is the responsibility of
the judiciary branch of government to objectively rule as to what
If the Senate amends the Bill of Rights for the first time
in history by passing the Flag Protection Amendment, who knows
where they would stop. Every nation in the world has a flag,
and many of them, including some democracies, have laws against
desecrating their flag. No other nation has a Bill of Rights
(Levy 219). The year 1991 marked the 200th anniversary of its
ratification, and, in my opinion, it requires no limiting
amendment. The American people understand that they are not
threatened by flag burners, and the American people prefer the
First Amendment undiluted. They understand that imprisoning a
few extremists is not what patriotism is all about; forced
patriotism is surely not American. Rep. Gary Ackerman (D-New
York) expressed these ideas when he said,
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…we are offended; and to change our
Constitution because someone offends us is, in itself,
unconscionable. (Apel Chronology).
Flag burning may be all wrong, but a lot of wrongheaded
speech is protected by the First Amendment. The Bill or Rights
is a wonderfully terse, eloquent, and effective summation of
individual freedoms, and there is no need to add except for flag
burners. That exception, as the Court majority in United States
v. Eichman realized, might show that the nation is so lacking in
faith in itself that it permits the Johnsons and Eichmans to
diminish the flags meaning. They are best treated, as Brennan
argued, by saluting the flag that they burn or by ignoring them
contemptuously, not by paving the way for an assault on our
In this research, I noted that all of the proponents for the
Eichman decision who were also against the Flag Protection
Amendment used very logical, well-structured arguments, while
those dissenting and in support of the amendment to an
amendment use mostly emotional arguments and focus on the
respect owed to all those who have died in the military
protecting the nation. These in the latter group seem usually to
be associated with the military themselves (e.g. Major General
Patrick H. Brady is the Board Chairman of the Citizens Flag
I entirely agree with the Supreme Courts ruling in this
case. Justice Stevens argued that flag-burning was not an
acceptable form of expression because people could convey their
views by other means; he seems to have failed to realize,
however, that it is not the right of the government to limit one
to a certain means of voicing his or her opinions. Flag burning
is a form of protest which rarely occurs and which does little
but offend others. Perhaps a law such as the Flag Protection
Act, while unconstitutional, is permissible as a means of
silencing organization such as the CFA, but an amendment to our
Bill of Rights if certainly going too far.
The issue of flag desecration has been and continues to be a
highly controversial issue; on the one side there are those who
believe that the flag is a unique symbol for our nation which
should be preserved at all costs, while on the other are those
who believe that flag burning is a form of free speech and that
any legislation designed to prevent this form of expression is
contrary to the ideals of the First Amendment to our
Shawn Eichman, as well as the majority of the United States
Supreme Court, is in the latter of these groups. Many citizens
believe that the freedom of speech granted to them in the First
Amendment means that they can express themselves in any manner
they wish as long as their right of expression does not infringe
on the rights of others; others, however, believe that there are
exceptions to this right of speech. Such constitutional issues
need to be worked out by the Supreme Court, which uses its powers
of constitutional interpretation and judicial review to outline
the underpinnings of the Constitution and interpret the law.
The case which acted as an impetus for Eichmans actions was
that of Texas v. Johnson. In 1984, in Dallas, Gregory Johnson,
a member of the Revolutionary Communist Youth Brigade, a Maoists
society, publicly burned a stolen American flag to protests the
re-nomination of Ronald Reagan as the Republican candidate (Levy
217). The police consequently arrested Johnson not for his
message but for his manner in delivering it; he had violated a
Texas statute that prohibited the desecration of a venerated
object by acts that the offender knows will seriously offend on
or more persons (Downs 83). Johnson had hoped to capture
Americas attention with this burning, and he did; however, his
protest earned him more than a moment in the national spotlight.
Under Texass tough anti-flag-burning statute, Johnson was fine
$2,000 and sentenced to a year in prison (Relin 16).
In Texas v. Johnson a majority of the Supreme Court
considered for the first time whether the First Amendment
protects desecration of the United States flag as a form of
symbolic speech. A sharply divided Court had previously dealt
with symbolic speech cases that involved alleged misuses of the
flag. While the Court had ruled in favor of the defendants in
those cases (Street v. New York, 1969; Smith v. Goguen, 1974;
Spence v. Washington, 1974), it had done so on narrow grounds,
refusing to confront the ultimate question status of flag
desecration (Downs 868). The court ruled in favor of Johnson
(5-4), believing that there was no evidence that Johnsons
expression threatened an imminent disturbance of the peace, and
that the statutes protection of the integrity of the flag as a
symbol was improperly directed at the communicative message
entailed in flag burning (Downs 868). Justice Brennan concluded
by saying, We do not consecrate the flag by punishing its
desecration, for in doing so we dilute the freedom that this
cherished emblem represents (Witt 409).
Reacting to this ruling, the Untied States Congress sought
to pass legislation that would overturn it. The Flag Protection
Amendment was introduced and then voted down, but then the Flag
Protection Act was passed in both houses. President Bush allowed
this act to pass without his signature, an expression of his
preference for a Constitutional amendment (Apel Flag
Protection). The Act criminalized the conduct of anyone who
knowingly mutilates, defaces, physically defiles, burns,
maintains on the floor or ground, or tramples upon a United
States flag, except conduct related to the disposal of a worn or
On October 30th, 1989, the day the bill went into effect,
hundreds of people burned flags; among them was Shawn Eichman.
The Justice Department admitted that the law was unconstitutional
under Texas v. Johnson, but prosecuted anyways, hoping to get the
court to reverse its decision. The court decided that flag
desecration is a form of political expression that is protected
under the First Amendment rights to free speech, and ruled in
favor of Eichman by a vote of 5 to 4, thus nullify the Flag
Protection Act which Eichman had been protesting (House 1144).
The majority consisted of Justices Brennan, Marshall, Blackmun,
Scalia, and Kennedy. Dissenting were Justices Stevens, Renquist,
For the majority opinion, Justice Brennan wrote the
Although the Flag Protection Act contains no explicit
content-based limitation on the scope of prohibited
conduct, it is nevertheless clear that the
Governments asserted interest is related to the
suppression of free expression…Moreover, the precise
language of the Acts prohibitions confirms Congress
interest in the communicative impact of flag
destruction…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 offensive or
disagreeable. Punishing desecration of the flag
dilutes the very freedom that makes this emblem so
revered, and worth revering. (Supreme)
According to Justice Anthony Stevens, The landmark decision was
simply a pure command of the Constitution. It is poignant but
fundamental that the flag protects even those who hold it in
Dissenting, Justice Stevens, along with the Chief Justice,
…It is equally well settled that certain methods of
expression may be prohibited if(a) the prohibition is
supported by a legitimate societal interest this is
unrelated to suppression of the ideas the speaker
desires to express; (b) the prohibition does not entail
any interference with the speakers freedom to express
those ideas by other means; and (c) the interest in
allowing the speaker complete freedom of choice
among alternative methods of expression is less
important than the societal interest supporting the
Justice Stevens concluded his opinion that by destroying the
symbol of freedom, the individual communicates a willingness to
By burning the embodiment of Americas collective
commitment to freedom and equality, the flag burner
charges that the majority has forsaken the
commitment–that continued respect for the flag is
nothing more than hypocrisy. Such a charge may be made
even if the flag burner loves the country and zealously
pursues the ideals that the country claims to honor.

Groups such as the American Civil Liberties Union (ACLU)
praised the ruling. Laura W. Murphy, Director of the ACLUs
National Washington Office showed her support when she said, The
First Amendment is this countrys first principle. It is a
critical part of what has made our country uniquely free. We
have been strengthened, not weakened, by the sweep of its
language and by the Supreme Courts adherence to its true
Many anti-flag desecration groups, particularly the
Citizens Flag Alliance (CFA), were outraged by this ruling.
These organizations petitioned Congress to reintroduce the Flag
Protection Amendment. Since the ratification of the Constitution
in 1789, some 10,000 attempts have been made to amend it. They
have included ideas such as eliminating the Senate, and
renaming the country the United States of Earth. But never in
the nations history has anyone tried to amend the Bill of
Rights. (Relin 18) To do so would be a dramatic step in that it
could pave the way for further future limitations on our
For an amendment to the Constitution to be made, The house
and the Senate have to propose (each by 2/3 vote) exactly the
same text before the amendment is open for ratification by the
states (Apel Hasbrouck). If the amendment (to the First
Amendment) is passed in both chambers, it then goes to the states
In 1990, both the House and Senate failed to muster the
required two-thirds majority to pass the Flag Protection
Amendment (Citizens). In 1995, however, the amendment cleared
the House by a vote of 312-120. This Senate Joint Resolution 31
(S.J. Res. 31) was also passed by the Senate Judiciary Committee
by a vote of 12-6, but was then rejected by the Senate by only 3
votes. In February of 1998, Senators Orrin Hatch (R-UT) and Max
Cleland (D-GA) reintroduced the amendment as S.J. Res. 40, but it
was decided that there was not enough time left in the term to
vote on the amendment. Most recently, in March of 1999, the Flag
Protection Amendment was reintroduced once again as S. J. Res.

14. Once again, it was passed in the House and by the Senate
Judiciary Committee, but to date has not become ratified.

Among those against the original amendment in 1990 were
George Mitchell, Tom Daschle, Patrick Leahy, Dale Bumpers, David
Boren, Howard Metzenbaum, Barbara Mikulski, Jeff Bingaman, Bill
Bradley, Paul Simon, and Christopher Dodd. Perhaps the most
ardent opponent to the amendment was Ted Kennedy. In an eloquent
speech he gave on June 11, 1990 he stated:
When we pledge allegiance to the flag, we pledge
allegiance to the principles for which it stands. Few,
if any, of those are more fundamental to the strength
of our democracy than the first amendments guarantee
of freedom of speech. Let us not start down this
disastrous road of restricting the majestic scope of
the first amendment by picking the kinds of speech that
are to be permitted in our society. (Ted)
He goes on to mention that this constitutional amendment might
irreparably damage the separation of powers that has protected
our constitutional freedoms throughout history…because judges
insulated from public pressure can best evaluate the claims of
unpopular minorities. Kennedy is saying here that since
Congress can be greatly influenced by special interest groups,
such as the Citizens Flag Alliance, it is the responsibility of
the judiciary branch of government to objectively rule as to what
If the Senate amends the Bill of Rights for the first time
in history by passing the Flag Protection Amendment, who knows
where they would stop. Every nation in the world has a flag,
and many of them, including some democracies, have laws against
desecrating their flag. No other nation has a Bill of Rights
(Levy 219). The year 1991 marked the 200th anniversary of its
ratification, and, in my opinion, it requires no limiting
amendment. The American people understand that they are not
threatened by flag burners, and the American people prefer the
First Amendment undiluted. They understand that imprisoning a
few extremists is not what patriotism is all about; forced
patriotism is surely not American. Rep. Gary Ackerman (D-New
York) expressed these ideas when he said,
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…we are offended; and to change our
Constitution because someone offends us is, in itself,
unconscionable. (Apel Chronology).
Flag burning may be all wrong, but a lot of wrongheaded
speech is protected by the First Amendment. The Bill or Rights
is a wonderfully terse, eloquent, and effective summation of
individual freedoms, and there is no need to add except for flag
burners. That exception, as the Court majority in United States
v. Eichman realized, might show that the nation is so lacking in
faith in itself that it permits the Johnsons and Eichmans to
diminish the flags meaning. They are best treated, as Brennan
argued, by saluting the flag that they burn or by ignoring them
contemptuously, not by paving the way for an assault on our
In this research, I noted that all of the proponents for the
Eichman decision who were also against the Flag Protection
Amendment used very logical, well-structured arguments, while
those dissenting and in support of the amendment to an
amendment use mostly emotional arguments and focus on the
respect owed to all those who have died in the military
protecting the nation. These in the latter group seem usually to
be associated with the military themselves (e.g. Major General
Patrick H. Brady is the Board Chairman of the Citizens Flag
I entirely agree with the Supreme Courts ruling in this
case. Justice Stevens argued that flag-burning was not an
acceptable form of expression because people could convey their
views by other means; he seems to have failed to realize,
however, that it is not the right of the government to limit one
to a certain means of voicing his or her opinions. Flag burning
is a form of protest which rarely occurs and which does little
but offend others. Perhaps a law such as the Flag Protection
Act, while unconstitutional, is permissible as a means of
silencing organization such as the CFA, but an amendment to our
Bill of Rights if certainly going too far.
Bibliography:
Works Cited
Apel, Warren S. ACLU Action Report. Online.
Apel, Warren S. Chronology to Flag Burning. Online.
Apel, Warren S. The Flag Protection Act of 1989. Online.


Apel, Warren S. Hasbrouk Explains the Voting Procedure.

Online.
Citizens Flag Alliance: Significant Campaign Events.
Online.
Downs, Donald A. Eichman, United States v. The Oxford
Guide to United States Supreme Court Decisions. New
York: Oxford University Press, 1999: 83.

Downs, Donald A. Texas v. Johnson. The Oxford Companion to
the Supreme Court of the United States. New York:
Oxford University Press, 1992: 868-869.

House Panel Approves Flag-Burning Measure. Congressional
Quarterly Weekly Report 17 May, 1997: 1444.

Levy, Leonard W. Flag Desecration. Encyclopedia of the
American Constitution. New York: MacMillan
Publishing Company, 1992: 217-220.

Relin, David Oliver. A Burning Question. Scholastic Update
21 Sept, 1990: 16-19.

Supreme Court of the United States. Online.
Ted Kennedy. Online.
U.S. Supreme Court–United States v. Eichman. Online.
Witt, Elden. Protest and the Flag. Congressional
Quarterlys Guide to the Supreme Court. Washington
D.C.: Congressional Quarterly Inc., 1990: 409.