Flag Desecration is Treason!

By Joshua Buege and Rachel E. Gomez

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Issue Before the Court:

Is the action of burning an American flag within the context of a public protest constitute "expressive conduct"?

Supreme Court Ruling: The burning of the American flag is considered "symbolic speech" and is protected under the First Amendment.

What is a Flag?

• What if we change the composition of the item?
• What if we have a rectangular piece of paper with red and white stripes plus a blue field containing fifty stars?
• If I burn that, am I burning an American flag?

None of these items technically qualify as a “flag” or an “American flag”.

A typical dictionary definition for “flag” will read something like “A piece of cloth, usually rectangular, of distinctive color and design, used as a symbol, standard, signal, or emblem.” - An American flag would thus be a rectangular piece of cloth with red and white stripes with a blue field containing fifty white stars in the upper left corner.

Definition of “flag” according to Texas law when the Supreme Court heard the Texas v. Johnson flag burning case:

Any flag, standard colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, color, or ensign of the United States of America, or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, standards, colors, or ensign of the United States of America.

*Most current state laws which prohibit flag desecration and which also define what a flag is are worded similarly.

Opposing Argument

• Flag burning amendment would further restrict the freedoms that the constitution is meant to protect

• Bans on flag burning and desecration are a solution in search of a problem: flag burning almost never occurs, and when it does, the only harm it causes is to the sensibilities of the very few people who see it.

• Burning a flag seems innocent enough, right? I mean, after all, it's just a material thing used to represent ideals, right? You're not really setting fire to freedom, patriotism, freedom, liberty, or freedom

• Meaning permitted for the flag, namely a respectful and patriotic one.

• Ensuring justice for the greater good and safety of our country

• Forcing flag burners to find a more intelligent means of relaying their message (vs. the often misinterpreted action of flag burning).

• The law leaves open ample alternative means for expression

Exceptions to the First Amendment

1. Defamation

2. Causing panic

3. Fighting words

4. Incitement to crime

5. Sedition

6. Obscenity

(a) whether the average person, applying contemporary community standards, would find that the work appeals to the prurient interest;

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) whether the work lacks serious literary, artistic, political or scientific value.

7. Establishment of Religion

8. Offense

Symbology: The Power of Symbols

One vitally important issue in the debate over burning and desecrating the American flag tends to be ignored: what exactly does the American flag mean and why?

The state’s interest in protecting the flag from disrespect is not abstract: according to Harlan, it is necessary for the “general good” that no one use the flag in a manner that encourages disrespect for either it or the nation.

(Halter v. Nebraska: Significance)

“Symbolic expression" is a phrase often used to describe expression that is mixed with elements of conduct.

The Supreme Court maintains that symbolic expression (or expressive conduct) may be protected by the First Amendment.

Examples of the Power of "Symbols"

• Florida pastor who planned to burn a Quran on the 9/11 anniversary. Insighted violence and affected national security.

And First Amendment Abuse

• The father of a Marine whose funeral was picketed by the Westboro Baptist Church. ordered to pay the protesters' legal costs in a civil claim. The Church is protected under first amendment rights.

Final Note:

Although aware that in our diverse nation, people will always find offense to another’s belief system, and I agree that laws should not be made solely under this context; doing so would be crippling if not impossible, but a flag burning amendment which prohibits such an act is more about preserving a clearly detrimental and prevalent national symbol, ensuring justice for the greater good, and forcing those in protest to find a more intelligent means of relaying their message, rather than through the ambigous and misinterpreted action of burning the American Flag. This is not how people make an impact and provoke positive change. As time progresses further from the founding of this nation, the prevalence of our national ensign appears forgotten.

Questions For Thought:

What Message Does This act send? Is the message clear? Is there a more intelligent and respectable way to send such a method?

Should every citizen have a right to say anything at all with no suppression by fellow citizens?

References

1. Gilingham, J.(1978),"Richard the Lionheart", Weidenfeld & Nicolson, London.

2. Ryder, C. (1992), "The RUC: A Force Under Fire", by Chris Ryder, London: Mandarin.

3. Wilson, R. (2000), Flagging concern: the controversy over flags and emblems by Robin Wilson, Democratic Dialogue.

4. Forget Flag Burning, Time, May 1, 2011

5. Hulse, Carl; Holusha, John (2006). "Amendment on Flag Burning Fails by One Vote in Senate". The New York Times. http://www.nytimes.com/2006/06/27/washington/27cnd-flag.html?_r=1&oref=slogin. Retrieved May 2, 2011.

6. "Upside-Down Flag Angers Veterans". CNSNews.com. 2002-07-03. http://www.cnsnews.com/public/content/article.aspx?RsrcID=5114. Retrieved 2011-05-01

Flag burning Should Not be Protected by the First Amendment

Flag Desecration Should be Considered Treason!

Main Arguments

Our Argument