Freedom of Speech Incites Liberty
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October 29, 2000. "This flag, which we honor and under which we serve, is the emblem of our unity, our power, our thought and purpose as a nation. It has no other character than that which we give it from generation to generation. The choices are ours" (quoted in Smith 87). This statement by Woodrow Wilson summarizes the debate over a proposed amendment to outlaw burning of the American flag. Is this symbol of our nation too powerful to be defiled in our collective mind, or is its manifestation of values the reason for us to outlaw its desecration? We see many constitutional and non-constitutional reasons both for and against passing the amendment; an analysis of the Constitution is vital to forming a valid opinion on this issue. In the past, the Supreme Court has ruled that burning the flag is a form of free speech which may not be limited by the government. One of the earliest decisions on this issue was in Street v. New York (1969). After hearing about the murder of civil rights leader James Meredith, Sidney Street, a decorated veteran of World War II, burned a flag he had been displaying at his home (Cohen 185), telling bystanders that "if they let that happen to Meredith, we don‘t need an American flag" (Cohen 185). He was arrested, tried before a jury, and convicted under the state’s statute prohibiting both the desecration of the flag and publicly speaking contemptuous words about it. Street’s attorney appealed to the Supreme Court, which ruled the sentence unconstitutional. The Court’s opinion was based mainly upon Mr. Street’s words; it stated that his declarations were a form of protest which is protected by the First Amendment and that he did not provoke retaliation from others. Regarding the physical desecration of the flag, the majority opinion stated that "we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization" (U.S. Supreme Court n. pag.). In addition, the Court ruled that "freedom to differ" is protected under the Bill of Rights. In a more recent case, Texas v. Johnson in 1989, the state of Texas placed a one-year jail sentence and a fine on Gregory Johnson, who was arrested for burning a flag outside the Republican National Convention in Dallas. The Supreme Court reversed this sentence by a five to four majority (Williams n. pag.). Justice William Brennan summarized the majority opinion when he stated that "we do not consecrate the flag by punishing its desecration, for in doing so, we dilute the freedom that this cherished emblem represents" (qtd. in O’Brien n. pag.). In general, the more liberal justices found Johnson’s act to be protected by the First Amendment, while the more conservative voted in favor of Texas, a split that seems to be mirrored in Congress and the public. Both of these cases used the First Amendment to argue that desecrating the flag is a form of protest, which cannot be lawfully banned under the Bill of Rights. The Court’s decisions in these cases are valid because they show an understanding and analysis of the First Amendment. In Street v. New York, the decision shows the Court’s understanding that Mr. Street’s language, while it was indeed inflammatory, did not provoke others to violently oppose him, and was therefore justified. Also, both Street’s and Johnson’s actions regarding the flag were forms of protest against the government, which, as we will see, it one of the ideals protected by the Amendment. As we have seen, the main constitutional argument in favor of allowing flag burning deals with the First Amendment. Burning the flag is a way of protesting something that it, and therefore our country, stands for. Because the Constitution does not forbid protest of, for example, our involvement in the Persian Gulf, it does not forbid someone from burning a flag to show very strong opposition to our actions (U.S. Supreme Court n. pag). This argument is valid because it considers the text of the Amendment, which states that "Congress shall make no law ... abridging the freedom of speech" (qtd. in Fiorina and Peterson 691). Congress would be abridging, or reducing, freedom of speech by banning flag burning; therefore, an amendment against flag burning will always be unconstitutional. Opponents of this argument contend that the founding fathers never envisioned people demonstrating such an extreme form of protest, and that the Constitution was meant to be changed with time; therefore, it would not be illegal to ban flag burning. Those who favor allowing flag burning also turn to the framers. They argue that the purpose of the Amendment is to protect those with unorthodox or controversial views, and was meant to allow these people to protest against a repressive or unpopular government. Citizens must therefore be allowed to keep their means of protest, no matter how extreme they may be (Webb n. pag.). This argument is made valid by history: the framers had recently separated themselves from the tyrannical British government, and were trying to ensure freedom from another absolute ruler. In addition, the British government had banned colonists’ means of protest by closing town meetings under the Coercive Acts (Fiorina and Peterson 43). The framers wanted to ensure that citizens’ protests against the government would always be allowed, and that the government would be checked by the people. It seems that the main constitutional argument against flag burning is that those who wish to desecrate the flag use a part of the constitution that does not exist (Citizens Flag Alliance n. pag.). This argument is somewhat weak, because the issue is covered by the First Amendment. Perhaps it is for this reason that many people support an Amendment allowing Congress to ban physical desecration of the flag. Proponents of the amendment also contend that the rights given by the First Amendment are not absolute because, at times, the social order is more important than allowing freedom of expression. They therefore argue that if a form of protest is so radical that it threatens our ideals or incites violent protest, as flag burning has been said to do, Congress is justified in outlawing that specific form of protest (Williams n. pag.). There are many more ideological, non-constitutional arguments on each side of the debate. The main argument is that the flag itself is merely a symbol of our country’s ideals, and its physical desecration does nothing to influence our collective attitude toward it. The flag has been implanted into the nation’s collective memory because it has been our symbol throughout our history, and has "seen" everything the United States has been through. Armstrong Williams points out that because "it has encapsulated so much for so many people, [and] transcends any single idea" (n. pag.). When someone burns a flag, he or she is only destroying a piece of cloth; the ideals that this physical symbol stand for remain. They argue that those who wish to outlaw its desecration are using the symbol as a pawn, and are trying to take away the basic freedoms for which it stands (Webb n. pag.). This argument holds merit because the flag is indeed a symbol not only of our country but of values including liberty, equality, and freedom to choose. When a flag is burned, the ideals for which it stands remain unharmed. Opponents of flag burning use the same argument, saying that the flag’s symbolism is what should protect it from desecration. They argue that destroying the flag is parallel to disregarding our shared history, and is therefore a form of protest that is both overly violent and inflammatory (Williams n. pag.). This argument also has relevance, because in the aforementioned Supreme Court cases, the courts have ruled -- to an extent -- that inflammatory protest may be punished. They also maintain that to destroy the flag is to show irreverence for its symbolic ideals; however, it should be noted that those who destroy the flag intend to show irreverence. Finally, they argue that those who oppose the proposed amendment do not wish to defend the flag itself; rather, they are defending the freedom of speech that the flag stands for (Williams n. pag.). All of these arguments are valid, because some people feel that defending the flag is equivalent to defending the values it stands for. Three recent proposals in Congress show both sides of this debate. One proposal, introduced by Senator Mitch McConnell in April of 1999, punishes those who use desecration of the flag to produce violence among others, those who steal or destroy a flag belonging to someone else on United States ground. The bill was referred to a committee (S.931 n. pag.), and has probably died since then. This bill shows somewhat of a compromise between the two sides: it allows citizens to desecrate their own flags as long as they do not use the action to incite violence. It satisfies those who wish to keep flag burning legal, because people would still be allowed to state their opinions; however, those who oppose flag burning are not satisfied because it is still allowed on private property. A second proposal, introduced by Representative Jo Ann Emerson in January of 1999, allows Congress to both prohibit the physical desecration of the flag and to set national criminal penalties for the act. The bill was referred to the Committee on the Judiciary and then the Subcommittee on the Constitution (H.J.RES.5 n. pag.), and has probably died. This proposal does outlaw a certain form of protest and would probably be subject to judicial review. In addition, many people who oppose excess federal authority would oppose this bill because it takes legislative power away from the states. The final bill was sponsored by Representative Cliff Stearns in June of 1999. It upholds that the Supreme Court’s decision in Texas v. Johnson is incorrect, recognizes the flag as a symbol of our nation which should be treated with the highest honor possible, and allows Congress to prohibit its physical desecration. It was referred to the House Judiciary Committee, and then the Subcommittee on the Constitution (H.J.RES.33 n. pag.). This bill would also be subject to judicial review because it outlaws a practice that the Court has ruled in protected under the Bill of Rights. It is certainly just to recognize the flag in such a way, although some feel that it is already treated with respect by the general public; owever, vast protest would be caused if Congress voted to outlaw its burning as a form of protest. As we have seen, desecration of the flag is indeed a form of protest, however extreme it may be. It does not matter if some people are violently opposed to its destruction; in comparison, the majority of the public is opposed to the ideas of the Ku Klux Klan, yet the government does nothing to stop its protests and rallies. Therefore, the few people who choose to protest by burning the flag should not be stopped. It is also true that the ideals for which the flag stands far transcend the attitudes of those who protest by burning it. The flag itself is a piece of cloth; liberty and equality are timeless and cannot be destroyed by burning the flag. It is frightening indeed that the government has considered taking away from us the very ideals for which the flag stands by prohibiting its desecration. If Congress were to pass the amendment prohibiting the practice, it would be the first step toward even more limitations of our freedom of speech. Burning of the American flag is a much debated issue in the United States today. A close analysis of the Constitution shows us that protest was one of the founding principles of our country, and that protest in any form should never be outlawed. If a person feels that he or she needs to burn a flag to prove his or her point, then nothing should stop that person from doing so. We must do everything possible to maintain our Constitutional right to free speech. Works Cited (1) Citizens Flag Alliance, Inc. Homepage. 1999. OnLine. http://http://www.cfa-inc.org/about.htm. Accessed October 29, 2000. (2) Cohen, Carl. Civil Disobedience: Conscience, Tactics, and the Law. New York: Columbia University Press, 1971. (3) Fiorina, Morris P., and Paul E. Peterson. The New American Democracy. Boston, MA: Allyn and Bacon, 1998. (4) "H.J.RES.5." OnLine. Thomas. http://thomas.loc.gov/cgi-bin/bdquery/z?d106:HJ00005:@@@L&summ2=m&. Accessed October 29, 2000. (5) "H.J.RES.33." OnLine. Thomas. http://thomas.loc.gov/cgi-bin/bdquery/z?d106:HC00142:@@@L&summ2=m&#status. Accessed October 29, 2000. (6) O’Brien, Tim. The Great Divide: Flag Burning Decision Split the Court. ABC News OnLine. 1999. http://abcnews.go.com/sections/us/Insite/flag990701.html. Accessed October 11, 2000. (7) "S.931." OnLine. Thomas (8) Smith, Whitney. The Flag Book of the United States. New York: William Morrow and Company, 1970. (9) U.S. Supreme Court. Street v. New York. April, 1969. FindLaw. OnLine. http://laws.findlaw.com/us/394/576.html. Accessed October 29, 2000. (10) Webb, Sandi. A Grand Old Flag? Does the U.S. really need to Prohibit Flag Burning? OnLine. September, 1995. Libertarian Party News http://www.lp.org/lpn/9509-flag.html. Accessed September 30, 2000. (11) Williams, Armstrong. The Flag Burning Amendment. New York Amsterdam News: 8.28. October, 1999. EbscoHost. http://ehost.epnet.com/ehost1.asp?key=204.179.122.140_8000_-975465456&return=y&site=ehost. Accessed October 29, 2000. |
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