On Saturday, President Trump endorsed a proposed Constitutional Amendment which would allow Congress to “prohibit the physical desecration of the flag of the United States,” tweeting:
The debate over the constitutionality of prohibiting burning or otherwise desecrating the American flag has been a long and contentious one.
In 1968, the Federal Flag Desecration Law was passed in response to the Vietnam War protests.
The text of the law reads in part:
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.
(b) As used in this section, the term “flag of the United States” means any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.
In 1970, a college student in the state of Washington hung an upside down American flag out of his apartment window. On both sides of the flag, the student used black tape to create a “peace” symbol in protest of the Kent State killings and the invasion of Cambodia by the United States. The student was arrested and convicted for violating a state statute relating to “improper use,” which prohibited the display of an American flag affixed with other materials or images.
In 1974, the Supreme Court ruled that such expression was protected by the First Amendment in Spence v. Washington.
In 1984, Revolutionary Communist Party member Gregory Johnson lit an American flag on fire outside of the Republican National Convention in Dallas, Texas. Johnson was arrested. In 1989’s Johnson v. Texas, the Supreme Court ruled 5-4 that Johnson’s flag burning was a form of constitutionally protected expression.
In a concurring opinion, Justice Kennedy wrote:
Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.
With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.
For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution.
During a 2012 interview with CNN, the late-Justice Antonin Scalia said:
If I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged – and it is addressed in particular to speech critical of the government. That was the main kind of speech that tyrants would seek to suppress. Burning the flag is a form of expression. Speech doesn’t just mean written words or oral words – [it could] be semaphore. Burning a flag is a symbol that expresses an idea. I hate the government; the government is unjust; whatever.
Over the last three decades, lawmakers have attempted to pass various flag desecration bans, but none have made it across the finish line. Even if a new “Flag Protection Act” were passed by the House and Senate and signed into law by the president, it would be challenged, leading to a battle at the Supreme Court, the result of which would likely be another win for freedom of expression.
The American flag is a symbol of liberty, virtue, and sacrifice, and few Americans have any desire to see it trampled or burned. However, to criminalize the desecration of the American flag would be to blight the First Amendment, which was designed to safeguard our freedom to express all viewpoints, especially those that may be regarded by the majority of citizens as disagreeable or even revolting.
Even in the face of the Supreme Court’s rulings and the general principles established in the First Amendment allowing the freedom of expression, there are still those who don’t believe that burning or otherwise damaging the American flag should be a constitutionally protected act. Yet the long arms of the federal government are always reaching, and each time we loosen the chains that bind them, whether it’s in exchange for safety or, in this case, a perceived virtue, they will try, and often succeed, at taking much more than they have been given.
If we are willing to allow the government to dictate what we can and cannot do with our American flags, what other personal property are we willing to have the government deem untouchable?