Is Flag-Burning Constitutionally Protected?
The United States is well-known for its principles of freedom and democracy, which is demonstrated through the First Amendment’s Free Speech Clause. Thus, American citizens can openly discuss political matters; criticize the President and his Cabinet on television, radio talk show or in the newspaper; or publicly protest against the government tax policy. However, Free Speech protection becomes debatable when some American citizens burn the nation’s flag to express their disagreement to the government.
The act of burning the American Flag should be constitutionally protected under the First Amendment’s Free Speech Clause because the act is a symbolic expression that communicates an individual’s idea or opinion about his nation; and that the First Amendment’s Free Speech Clause covers and protects symbolic expression. I. First Amendment’s Free Speech Clause and Texas v. Johnson (1989) a) First Amendment’s Free Speech Clause
The First Amendment was written in the Constitution in 1791, which listed basic civil liberties, rights that the government cannot take away from an individual, including free establishment and exercise of religion, freedom of speech, of the press, assembly and petition. The Free Speech Clause was added to the First Amendment in 1789 by James Madison, which stated that “Congress shall make no law…. abridging freedom of speech”. Freedom of speech allows an individual to openly voice his opinions without fear of government’s censorship and is seen as a privilege to most Americans, which set them apart from other nations.
However freedom of speech is not absolute. The word “abridging” in the Free Speech Clause suggests that government cannot deprive the right to freedom of speech; but at the same time the suggestion is unclear about whether the government can put restrictions on how “free” the speech can be. Most people when mention the word “speech”, usually have the tendency to think of spoken words and often neglect the existence of expressions, which is clearly a form of communication that people use to express their opinions.
Thus their common argument is that Free Speech Clause is limited to literally “speech”, not expressions. However, according to the Supreme Court’ rules, both verbal and non-verbal expressions are protected under the Free Speech Clause as long as they are not fighting words, libel, slander or defamation. Issues arise when freedom of speech conflicts with society’s belief and value. Some people view the act of burning the American Flag as an individual’s disagreement with the nation, yet others consider it an illegal behavior of an extremist. In 2003, more than ten years after Texas v.
Johnson, people still made various attempts to amend the First Amendment’s Free Speech Clause, which would outlaw flag desecration. b) Texas v. Johnson (1989) Texas v. Johnson (1989) is the landmark case that creates most controversies over the realm of protection of the First Amendment’s Free Speech Clause. Johnson set the American flag on fire while protesting with other demonstrators during the Republican National Convention in Dallas in 1984. The Supreme Court’s decision was that Texas’s Flag Desecration law was unconstitutional and Johnson was protected under First Amendment’s Free Speech Clause.
Justice Stevens and Rehnquist argued that the act was “evil, profoundly offensive” and did not “express any particular idea, but to antagonize others” and that; even if the act was legal, the flag itself was “unique” and honorable enough to make all rules inapplicable. The first half of the justice’s argument lacks consideration of the neutrality concept that the First Amendment embodies, and thus creates bias in favor of the speech it likes. Besides, it is difficult to judge whether the act conveys a political message or not for every speech, verbal or symbolic, has its political aspect.
The second half of this argument takes the idea of “symbol” to the extreme that it misses the most important meaning behind the flag, which is not how many people died from fighting for the country but what they sacrificed their lives for: the basic principles of freedom and democracy that the US is established on. This debate has been a major one before and after the decision of Supreme Court on this case. II. Flag burning as a symbolic act, symbolic counter speech and the original meaning of the First Amendment’s Free Speech Clause a) Flag burning is a symbolic act
The act of burning the American flag is definitely a symbolic expression for the flag itself is symbolic by definition and expression is the purpose of the flag (Arbukle, 22). In other words, the American flag represents the nation’s symbol and the individual acts on it to express ideas or political opinions. According to Mark Arbukle, displaying the flag is a form of symbolic expression, so it would be unfair and illogical if burning the flag is not a symbolic expression. Using the same logic, if burning the flag is restricted then displaying the flag can be restricted as well.
It is difficult to exclude either of them from Free Speech protection because after all, they always serve for a political purpose due to the flag nature as a symbol of the country. According to Tiersma, an act, in order to be considered as “speech” should qualify two criteria. First of all, the act needs to have meaning. Secondly, the actor must intend to convey a message through his act (Tiersma, 1557-1562). Burning the American qualifies the first criterion because it is a symbolic expression by definition. Yet, it does not qualify the second criterion because the act does not necessarily convey a message. Given the case Texas v.
Johnson in 1989, how can one tell that Johnson’s act of burning the flag actually express his message to the viewers, or merely an act of vandalism? Johnson’s act of burning the flag can also be seen simply as disposing the flag without any specifically meaningful purpose. Since it is difficult to figure out the real motive behind the act, burning the flag should not be constitutionally protected. In Texas v. Johnson, the act of burning the flag clearly communicated a political message because first, Johnson’s purpose was not to dispose the flag due to its bad condition because the flag was brand-new before being burned.
Secondly, the act was executed in the protest in front of the city hall during the national convention of the Republican. Johnson must have disagreement with the content discussed in the convention and he wanted to get attention from the public about his opinion. Therefore, Johnson’s act is a form of “free speech”. b) Original Meaning of the First Amendment’s Free Speech Clause Despite the fact that burning the flag is not literally a speech, past’s Supreme Court’ cases considered the act of burning the flag symbolic expression and thus protected it under the Free Speech Clause.
Without referring to the meaning of the Free Speech Clause at the time it was written by the Framers, this interpretation becomes irrelevant. Thus the Supreme Court’s interpretation is not based merely on the justices’ rational reasoning, but rather relied on the original meaning of the First Amendment’s Free Speech Clause, which according to Professor Eugene Volokh, treated symbolic expression and verbal expression equally. His way of figuring out Framer’s intention behind the Constitution is looking at the context of the Framing era.
Professor Volokh gave several examples of political symbolic expression, including colonists protesting against Stamp Act in 1765 by burning and beheading effigies of British colonial governors, as well as burning copies of Sedition Act and other federal laws to show their disagreement with the current government law at that time. These examples show that the culture back then was exposed to the use of symbolic expressions for political purposes. Therefore, the Framers must have covered and protected symbolic expression under freedom of speech.
The act of burning the flag hence is equivalent to the burning of effigies or government documents in historical examples and should be protected under Free Speech Clause. The problem with original meaning of the Constitution is that from the context of the Framing era one cannot assume that this meaning protected the act of burning the flag, draft cards or other symbolic expressions. The argument agrees that symbolic expression are meant to be included in the Constitution, however, it is questionable that all forms of symbolic expression are protected.
In the case US v. O’Brien in 1968, O’Brien burned his draft card to protest against the Vietnam War, yet his act was not protected according to the Supreme Court. If the act of burning the effigies, federal document and the American flag are constitutionally protected, then O’Brien’s act should not be an exception. However, it seems like the original meaning of the Constitution neglects burning the draft cards. So, from the decision of this case, it can be inferred that the Free Speech clause includes but does not protect symbolic expression.
Under the case US v. O’Brien, the act of burning the draft card was not protected under the Free Speech Clause because from the beginning it is not a form of symbolic expression. Justice Brennan stated that “limitless variety of conduct” cannot be labeled speech because the person acting wants to convey a message. The draft card’s purpose is simply improving the efficiency and effectiveness of the Selective Service System, not invoking war or maintaining peace. The government creates it exclusively to assist the operations of the Selective Service System. Fishman, Parker, Ed, 138) In this case, O’Brien’s freedom of speech became irrelevant for O’Brien himself failed to show that his act had a political meaning, which related to the ideas that the draft card symbolized. c) Flag burning is a symbolic counter speech In a logical sense, burning the flag is a direct counter response to the values that the flag symbolizes and to the government message. An individual embraces the American flag when he sees that America supports freedom, democracy, equal opportunities, the basic principles that the nation has been established on.
When these principles are not upheld by the government anymore, he chooses to burn the American flag to express his disagreement and disappointment because the flag, as a symbol of these principles, symbolizes the opposite ideals. Howard M. Wasserman called this act a “symbolic counter speech, a direct response to the symbol on its own terms, employing the symbol itself in the counter-message. ” (Wasserman, 3). In his article, he argued that every speech, whether it is verbal or symbolic, “leads inevitably and necessarily to counter-speech” (Wasserman, 3).
The fact that Wasserman’s argument specifically categorizes flag burning as a symbolic counter speech has inferred that once again flag burning is a form of symbolic expression that firmly communicates an idea, or rather a counter-message to the values that the flag upheld. Justice Steven would not agree with Wasserman’s theory, which suggests that flag burning is simply an inevitably symbolic counter speech, because the nature of the flag as a symbol possesses power that “operates at a non-rational level” (Greenawalt, 944).
An individual cannot treat the flag well or badly based on his feelings toward the government. More importantly, he cannot burn the flag and be justified just because the act is “inevitable”, as a “counter speech”, and does not alter or tarnish the values that the flag symbolizes. Justice Steven strongly emphasizes that the flag is a symbol of the nation as a whole. Burning the flag expresses a sense of disrespect towards the flag and hence will make everyone’s respect towards the flag decline.
It is true that the flag is important and should be honored at all times. However, it also makes sense that if speeches exist then counter-speeches do too. This theory relates to Arbikle’s argument earlier: if one can display the flag as an act of patriotism, then one can also burn the flag as one’s dissent towards the government or the country. By supporting this argument, we can avoid being biased towards which symbolic expression gets protection of the Free Speech Clause. III. Conclusion
Considering the act of burning the flag constitutionally protected reflects the commitment to the free speech right that all Americans possess. It also suggests that all forms of “speech” should be permitted instead of prohibiting because the Constitution was established upon tolerance and respect for freedom of expression. Bibliography Arbuckle, Mark R. (2003) “Vanishing Protection for Symbolic Expression 35 years after US. O’Brien”. Communications and the Law. EBSCOhost. Trinity University. Oct 23, 2010. Goldstein, Robert Justin.
Desecration the American flag: key documents of the controversy from Civil War to 1995. Syracuse University Press, 1996. Goldstein, Robert Justin. Flag Burning & Free Speech. University Press of Kansas, 2000. Greenawalt, Kent. “O’er the land of the free: Flag burning as speech” 37 UCLA L. Rev. 925 (1990) Parker, Richard A, Ed. Free Speech on Trial: communication perspectives on landmark Supreme Court deicisions. University Alabama Press, 2003. Richards, David A. J. “Melville B. Nimmer Symposium: Article: A Theory of Free Speech” UCLA Law Review, 1987 Sunstein, Cass A.
Democracy and problem of free speech. Free Press, 1995 Texas v. Johnson, 491 U. S. 397(1989) United States v. O’brien, 391 U. S. 367 (1968) Volokh, Eugene “Symbolic Expression and the Original Meaning of the First Amendment”. Georgetown L. Rev. 97 (2009): 1057-1084 Abbott, Edwin A. “Rehabilitating the performative”. 120 Harv. L. Rev. 2200 (2007) Tiersma, Peter. “Nonverbal communication and freedom of speech” Wis. L. Rev. 1525 (1993) Wasserman, Howard. “Symbolic Counter-Speech”. Williams and Mary Bill of Rights Journal (2003)
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