The American flag, with its stars and stripes, is one of the most recognizable and potent symbols of the United States. It represents the nation's values, history, and aspirations. However, the very freedoms it symbolizes have led to a complex and often contentious legal landscape surrounding its treatment. This article delves into the intricate history and current legal status of flag desecration in the United States, exploring how the issue intersects with fundamental constitutional rights and deeply held beliefs about patriotism and free expression.
The first laws protecting the American flag from desecration were enacted in the late 19th and early 20th centuries. These laws were primarily aimed at preventing the use of the flag for commercial advertising. By the mid-20th century, most states had laws prohibiting flag desecration in various forms.
During World War II and the subsequent Cold War, patriotic fervor led to increased sensitivity about the treatment of the flag. This period saw a proliferation of flag protection laws and stricter enforcement of existing statutes. The flag became an even more potent symbol of national unity and American values in opposition to fascism and communism.
While not directly addressing flag burning, this case laid important groundwork. The Supreme Court overturned the conviction of a man who had burned a flag and spoken words critical of the government. The Court ruled that his verbal expression was protected by the First Amendment, but did not directly address the act of flag burning itself.
This landmark case brought the issue of flag desecration to the forefront of national debate. Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade, was arrested for burning an American flag outside the 1984 Republican National Convention in Dallas, Texas. He was convicted under a Texas statute that prohibited the desecration of venerated objects, including the flag.
The case made its way to the Supreme Court, which ruled 5-4 in favor of Johnson. Justice William Brennan, writing for the majority, stated that Johnson's act of flag burning was a form of "symbolic speech" protected by the First Amendment. Key points from the decision include:
- The Court recognized flag burning as expressive conduct, allowing it to be considered under First Amendment protections.
- The majority opinion emphasized that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable.
- The Court rejected the argument that the government has a unique interest in preserving the flag as a symbol of national unity that overrides First Amendment concerns.
This decision effectively invalidated flag desecration laws in 48 states. Only Alaska and Wyoming did not have such laws at the time.
In response to the Johnson decision, Congress passed the Flag Protection Act of 1989. This federal law attempted to be content-neutral, focusing on the act of flag desecration rather than any message conveyed, in hopes of circumventing the Supreme Court's ruling in Johnson.
However, this law was quickly challenged. In United States v. Eichman, the Supreme Court considered the constitutionality of the Flag Protection Act. The case arose from incidents where protesters, including some defendants from the Johnson case, burned flags in protest of the new law.
In another 5-4 decision, the Court struck down the Flag Protection Act, reaffirming that flag desecration is protected speech under the First Amendment. The Court held that the government's interest in preserving the flag as a symbol did not justify a special exception to the First Amendment for this one symbol.
As a result of these Supreme Court decisions, there are currently no enforceable federal or state laws prohibiting flag desecration in the United States. The relevant section of federal law, 18 U.S.C. § 700, remains on the books but is unenforceable due to being ruled unconstitutional.
The text of 18 U.S.C. § 700 states:
"(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both. (2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled."
While this law technically exists, it cannot be enforced due to the Supreme Court rulings in Johnson and Eichman.
It's important to note that while flag desecration itself cannot be criminalized, related actions during an act of flag desecration might still be illegal. For example, if someone stole a flag to burn it, they could be charged with theft. If they burned a flag in a way that posed a public safety hazard, they could be charged with reckless endangerment or violating fire codes.
The United States Flag Code (4 U.S.C. § 5 et seq.) provides guidelines for the handling and display of the American flag. It includes provisions such as:
- The flag should never be used for advertising purposes.
- It should not be used as wearing apparel, bedding, or drapery.
- It should never touch the ground.
- It should be illuminated if displayed at night.
- When a flag is so tattered that it can no longer serve as a symbol of the United States, it should be destroyed in a dignified manner, preferably by burning.
However, the Flag Code is officially advisory in nature. There are no penalties for failing to comply with it, and it is not enforced – doing so would likely conflict with First Amendment protections. The Flag Code serves more as a guide for respectful treatment of the flag rather than a legally binding set of rules.
Despite the Supreme Court's rulings, the issue of flag desecration remains controversial in American society and politics. Since 1990, there have been multiple attempts to pass a constitutional amendment that would allow Congress to prohibit flag desecration.
The proposed Flag Desecration Amendment typically reads: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."
This amendment has been introduced in Congress multiple times since 1990. The closest attempt came in 2006, when an amendment passed the House of Representatives with the required two-thirds majority but failed in the Senate by a single vote.
The United States' approach to flag desecration is relatively unique among nations. Many countries, including Germany, China, and Japan, have laws prohibiting the desecration of national symbols. The U.S. Supreme Court's protection of flag burning as free speech places America in a minority of nations that extend such broad protections to symbolic speech.
While burning or desecrating the American flag may be deeply offensive to many, it is currently legal and protected as a form of free speech under the U.S. Constitution. This protection stems from Supreme Court decisions that have consistently upheld the right to engage in flag desecration as a form of political expression.
The ongoing debate surrounding this issue reflects the tension between protecting free speech and respecting national symbols. It serves as a powerful reminder of the complexities involved in balancing different aspects of American values and constitutional rights. Unless a constitutional amendment is passed, the legal status of flag desecration is likely to remain unchanged, continuing to be a subject of passionate debate in American society.