This House would prohibit burning the stars and stripes

When destroying the flag of the United States it is the values of the United States that are under attack. Since the birth of the nation the flag of the United States, the eponymous "Star-Spangled Banner", has been flown proudly in all parts of the country. It has become an endemic fixture in American culture and has come to be seen by people all over the United States, and the world, as a representation of the spirit and identity of nation. It appears on every seal of public office, is flown outside every public building and a flag-shaped pin is worn upon the breast of virtually every public figure. The flag has been imbued with a special significance by the citizens of the United States, and is viewed almost universally with extensive reverence¹. It has come to be seen as emblematic of all the values and virtues of American society. In a way it is the physical sublimation of those values; at least that is how it is often treated. For this reason, to destroy the flag is to destroy the values they represent, and thus the flag must be protected in order to protect the values of the nation the flag represents.

¹Miller, J. Anthony. 1997. Texas v. Johnson: The Flag Burning Case. Berkeley Heights: Enslow Publishers.

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The values of the United States are what should be protected, not the flag. One of those values is the upholding of freedom of speech and expression. The right to express ones views and opinions must be held inviolable to an extent. While there is a case for defamation and hate speech laws because they have a very real and direct impact on people, the flag is only important insofar as people ascribe meaning to it. It is foolish to make illegal a view contrary to the mainstream that may not value the flag so highly.

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Freedom of speech and expression is an important right, which is why it is listed first in the Bill of Rights; it is central to a fair and free democracy. However, it has limits. Some forms of speech are contrary to the values of democracy, namely when they infringe upon or violate the ability of others to enact their own rights and freedoms. This is why such things as incitement to hatred, other violence-promoting speech, as well as defamation and perjury are legislated against; they are expressions that infringe the rights of others, by causing fear and increasing risk of harm in case of hate speech, and by harming reputations and the effective administration of justice in terms of defamation and perjury respectively. Rights stop where harm to others begins. In the case of flag burning, as the dissenting opinion of Justice William Rehnquist on the issue says, the act is an extremely visceral one, and is often perceived as a direct attack on the core values of America itself, which many consider to be representative of those values, leading to feelings of anger and violation¹. It is an infringement of these offended people's rights when flags are allowed to be burned.

¹Goldstein, Robert. 2000. Flag Burning and Free Speech: The Case of Texas v. Johnson. Lawrence: University Press of Kansas.

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Unlike hate speech or defamation, when some burns a flag no one is actually hurt. Some people may feel their sensibilities offended by such acts, but making people feel uncomfortable should not be illegal. The act of flag burning is in itself neutral. The direction of the message the act is meant to convey is what must be considered, not the act itself. Prohibiting flag burning is in this sense pointless. Furthermore, it should be within someone's rights to challenge the values of the nation and to destroy the symbol of those values as evidence of their disagreement. If people cannot challenge those values then society is not free at all.

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It is highly questionable whether burning a flag can be considered a speech or expressive act at all. It seems to offer up no new concepts or true opinions to the "marketplace of ideas". Nothing is genuinely expressed by the act that could not be done through words or other, less fiery means. The act of flag burning does nothing to help the advancement or elucidation of truth, which is why people have the right to freedom of expression in the first place. Rather, it clouds the issue supposedly being furthered by the act. It welcomes the rhetoric of "un-Americanism", whereby critics and commentators question the protestors' general patriotism, not the validity of their underlying cause, which can eventually lead to the same criticism of their cause itself. Anger clouds the discussion, with people viewing the cause in terms of unpatriotic people supporting the cause, and thus calling for patriots to oppose it. Examples of this problem can be seen clearly in the various protests during the Vietnam War in which misguided protestors burned flags to show their opposition to the war and killing of innocents. The response to these protests, however, were accusations of lack of patriotism on the parts of those involved and gave a powerful rhetorical tool to the political groups still supporting the fight¹. Furthermore, when anger and rhetoric cloud all discussion of an issue, it can lead to unmeasured, even violent responses from authorities and concerned citizens. Flag burning is thus counterproductive as a tool of protest, since it stops the message being propagated and pollutes the forums of discourse from being able to search for answers reasonably.

¹ Amar, Akhil. 1992. "The Case of the Missing Amendments: R.A.V. v. City of St. Paul". Yale Law School Legal Scholarship Repository.

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It is exactly because of the visceral response it causes that flag burning is such an effective tool of protest. It draws media and public attention, thus giving the protestors the chance to speak to a wider audience than they might ever have been able to had they used other methods. While there might be some rhetorical backlash, it is not enough to make it not worthwhile. In the case of violent response, the ability to exercise a right should never be infringed by the potential for a violent response to its exercise. People's rights should be better protected in that case, not restricted.

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All national polls conducted in the United States have shown a majority popular support for banning flag burning¹. State and federal laws, passed by democratically elected representatives, have for decades passed popularly supported laws aimed at protecting the flag from desecration. The Supreme Court, however, has struck down these laws as being contrary to the rights to free speech, by a narrow 5-4 vote². Yet popular support for such laws has not diminished. This has led to attempts to pass a Flag Desecration Amendment to the Constitution, which would then necessarily have to be accepted by the Court. In 2006, the House of Representatives passed such an amendment by the requisite supermajority, and it died in the Senate by only a single vote³. Clearly, the vast majority of citizens and legislators actively support legislation to protect the flag. Law should reflect the will of the people and prevent the desecration of the nation's most sacred symbol. Failing to do so gives precedence to the rights of a small minority to perform an act that does not hold any major sway over their lives over the democratic rights of the democratic public.

¹ CNN. 2006. "Flag-Burning Amendment Fails by a Vote". CNN.
²Miller, J. Anthony. 1997. Texas v. Johnson: The Flag Burning Case. Berkeley Heights: Enslow Publishers.
³ Hulse, Carl and John Holusha. 2006. "Amendment on Flag Burning Fails by One Vote in Senate". The New York Times.

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Popular support is not reason enough to deny people their constitutionally protected rights. The framers of the Constitution were wary of popular opinion, having a justifiable fear that the majority might try to circumscribe the rights of the minority. This is why there are so many check and balances within the Constitution and is exactly why the Supreme Court has defended citizens' right to expression irrespective of the will of the legislature or of the majority of people to enforce their views upon a minority. Popular opinion should not concern fundamental rights.

improve this

When destroying the flag of the United States it is the values of the United States that are under attack. Since the birth of the nation the flag of the United States, the eponymous "Star-Spangled Banner", has been flown proudly in all parts of the country. It has become an endemic fixture in American culture and has come to be seen by people all over the United States, and the world, as a representation of the spirit and identity of nation. It appears on every seal of public office, is flown outside every public building and a flag-shaped pin is worn upon the breast of virtually every public figure. The flag has been imbued with a special significance by the citizens of the United States, and is viewed almost universally with extensive reverence¹. It has come to be seen as emblematic of all the values and virtues of American society. In a way it is the physical sublimation of those values; at least that is how it is often treated. For this reason, to destroy the flag is to destroy the values they represent, and thus the flag must be protected in order to protect the values of the nation the flag represents.

¹Miller, J. Anthony. 1997. Texas v. Johnson: The Flag Burning Case. Berkeley Heights: Enslow Publishers.

improve this

The values of the United States are what should be protected, not the flag. One of those values is the upholding of freedom of speech and expression. The right to express ones views and opinions must be held inviolable to an extent. While there is a case for defamation and hate speech laws because they have a very real and direct impact on people, the flag is only important insofar as people ascribe meaning to it. It is foolish to make illegal a view contrary to the mainstream that may not value the flag so highly.

improve this

Freedom of speech and expression is an important right, which is why it is listed first in the Bill of Rights; it is central to a fair and free democracy. However, it has limits. Some forms of speech are contrary to the values of democracy, namely when they infringe upon or violate the ability of others to enact their own rights and freedoms. This is why such things as incitement to hatred, other violence-promoting speech, as well as defamation and perjury are legislated against; they are expressions that infringe the rights of others, by causing fear and increasing risk of harm in case of hate speech, and by harming reputations and the effective administration of justice in terms of defamation and perjury respectively. Rights stop where harm to others begins. In the case of flag burning, as the dissenting opinion of Justice William Rehnquist on the issue says, the act is an extremely visceral one, and is often perceived as a direct attack on the core values of America itself, which many consider to be representative of those values, leading to feelings of anger and violation¹. It is an infringement of these offended people's rights when flags are allowed to be burned.

¹Goldstein, Robert. 2000. Flag Burning and Free Speech: The Case of Texas v. Johnson. Lawrence: University Press of Kansas.

improve this

Unlike hate speech or defamation, when some burns a flag no one is actually hurt. Some people may feel their sensibilities offended by such acts, but making people feel uncomfortable should not be illegal. The act of flag burning is in itself neutral. The direction of the message the act is meant to convey is what must be considered, not the act itself. Prohibiting flag burning is in this sense pointless. Furthermore, it should be within someone's rights to challenge the values of the nation and to destroy the symbol of those values as evidence of their disagreement. If people cannot challenge those values then society is not free at all.

improve this

It is highly questionable whether burning a flag can be considered a speech or expressive act at all. It seems to offer up no new concepts or true opinions to the "marketplace of ideas". Nothing is genuinely expressed by the act that could not be done through words or other, less fiery means. The act of flag burning does nothing to help the advancement or elucidation of truth, which is why people have the right to freedom of expression in the first place. Rather, it clouds the issue supposedly being furthered by the act. It welcomes the rhetoric of "un-Americanism", whereby critics and commentators question the protestors' general patriotism, not the validity of their underlying cause, which can eventually lead to the same criticism of their cause itself. Anger clouds the discussion, with people viewing the cause in terms of unpatriotic people supporting the cause, and thus calling for patriots to oppose it. Examples of this problem can be seen clearly in the various protests during the Vietnam War in which misguided protestors burned flags to show their opposition to the war and killing of innocents. The response to these protests, however, were accusations of lack of patriotism on the parts of those involved and gave a powerful rhetorical tool to the political groups still supporting the fight¹. Furthermore, when anger and rhetoric cloud all discussion of an issue, it can lead to unmeasured, even violent responses from authorities and concerned citizens. Flag burning is thus counterproductive as a tool of protest, since it stops the message being propagated and pollutes the forums of discourse from being able to search for answers reasonably.

¹ Amar, Akhil. 1992. "The Case of the Missing Amendments: R.A.V. v. City of St. Paul". Yale Law School Legal Scholarship Repository.

improve this

It is exactly because of the visceral response it causes that flag burning is such an effective tool of protest. It draws media and public attention, thus giving the protestors the chance to speak to a wider audience than they might ever have been able to had they used other methods. While there might be some rhetorical backlash, it is not enough to make it not worthwhile. In the case of violent response, the ability to exercise a right should never be infringed by the potential for a violent response to its exercise. People's rights should be better protected in that case, not restricted.

improve this

All national polls conducted in the United States have shown a majority popular support for banning flag burning¹. State and federal laws, passed by democratically elected representatives, have for decades passed popularly supported laws aimed at protecting the flag from desecration. The Supreme Court, however, has struck down these laws as being contrary to the rights to free speech, by a narrow 5-4 vote². Yet popular support for such laws has not diminished. This has led to attempts to pass a Flag Desecration Amendment to the Constitution, which would then necessarily have to be accepted by the Court. In 2006, the House of Representatives passed such an amendment by the requisite supermajority, and it died in the Senate by only a single vote³. Clearly, the vast majority of citizens and legislators actively support legislation to protect the flag. Law should reflect the will of the people and prevent the desecration of the nation's most sacred symbol. Failing to do so gives precedence to the rights of a small minority to perform an act that does not hold any major sway over their lives over the democratic rights of the democratic public.

¹ CNN. 2006. "Flag-Burning Amendment Fails by a Vote". CNN.
²Miller, J. Anthony. 1997. Texas v. Johnson: The Flag Burning Case. Berkeley Heights: Enslow Publishers.
³ Hulse, Carl and John Holusha. 2006. "Amendment on Flag Burning Fails by One Vote in Senate". The New York Times.

improve this

Popular support is not reason enough to deny people their constitutionally protected rights. The framers of the Constitution were wary of popular opinion, having a justifiable fear that the majority might try to circumscribe the rights of the minority. This is why there are so many check and balances within the Constitution and is exactly why the Supreme Court has defended citizens' right to expression irrespective of the will of the legislature or of the majority of people to enforce their views upon a minority. Popular opinion should not concern fundamental rights.

improve this

Flag burning is such a powerful and useful method of protest for the very reason that it is a visceral expression to which many people will respond. Jarring statements grab attention, and force discourse on the issue¹. A conventional protest can be overlooked, but images of a flag being burned immediately drags in media attention and starts a commentary. While some commentary does center on the issue of flag burning itself, it also necessarily brings it to the cause as well. When protesters are called to explain themselves, they get a chance to explain their views and promote their cause to a much wider audience than they might well not have been able to reach otherwise. Thus flag burning can be very valuable for gaining attention, and if done thoughtfully, to generate support.

¹Epstein, Lee and Thomas Walker. 1998. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Washington, DC: Congressional Quarterly Inc.

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Burning a flag may grab attention, but it will invariably be attention of a kind unwanted by the ones doing the burning. If individuals desecrate a flag with the intent of gathering attention to their cause they will be disappointed when they see that public opinion is turned against them not because of their cause, but because of their methods. An attack on the flag is often seen, and is often portrayed in the media, as being an attack on America itself. For this reason flag burning is almost universally counterproductive to the furtherance of a cause, whether legal or not.

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Burning a flag may not be an act of "un-Americanism", in the sense of opposing widely held principles considered emblematic of the United States, at all in many cases. Often the flag can be burned as an act of patriotism. When individuals feel the state is doing something contrary to the ideals of the nation, and thus those that the flag represent, burning of a flag can be symbolic of the state's non-adherence to the values it is meant to defend¹. The act of burning thus serves to connect the cause of the protestor to the very ideals of the nation, and shows that it is central to the discourse of what the nation's values are and how they should be maintained, rather than simply being the ancillary opinions of a few people that can simply be discarded.

¹Welch, Michael. 2000. Flag Burning: Moral Panic and the Criminalization of Protest. Piscataway: Aldine Transaction.

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Regardless of the reasons a protestor chooses to burn the flag, the act of burning is a violation of the nation's ideals and an attack upon the people who uphold them. No intelligent discourse is created regarding the behavior of the state when a flag is burned, but rather is simply counterproductive, as the state is able to declare the opinions of the protestors to be as unpatriotic as the act of burning a flag in protest itself, thus shifting public opinion against them.

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When an individual's views are particularly opposed and contrary to those the national flag is customarily considered to embody, there can be no more valuable way of showing opposition. Should views be judged outdated or in error, people must have a way of showing it in a visceral way that will gain attention and spark discourse. Conventional patriotic views deserve to be challenged, if only to be reaffirmed by the public in the ensuing debate. The problem with prohibiting the act of flag burning is that it necessarily sends the message of banning discourse on the subject of what the flag represents¹. It makes those values inviolable, but a free society should be able to question and change its values. Banning flag burning thus essentially bans dissent from the prevailing view. Yet banning something on the basis of majority opinion and their easily offended sensibilities is little more than a heckler's charter. If views are banned simply because the majority disagrees with them, it is little more than the tyranny of the strong over the weak, and thus clearly unjust². The very reason there are checks and balances in the United States government is to prevent such tyranny. This is exactly why the Supreme Court has stood against the laws passed by the federal and state legislatures banning desecration of the flag; they protect the rights of citizens with a minority opinion from the majority seeking them away³. Flag burning is a form of free speech that helps people question what the United States should be. Banning it only serves to corrupt society.

¹Welch, Michael. 2000. Flag Burning: Moral Panic and the Criminalization of Protest. Piscataway: Aldine Transaction.
²Mill, John Stuart. 1859. On Liberty. London: Penguin Classics (1982).
³Eisler, Kim. 1993. A Justice for All: William J. Brennan Jr. and the Decision that Transformed America. New York: Simon and Schuster.

Banning the burning of flags does not in any way ban opinions about the state or the ideals the flag represents. Arson is an essential tool in the quest for reform. Rather than using such methods that do more to offend than to inform, protestors should focus on actually starting measured discourse in a way that is not simply offensive.

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For society to be free and democratic it must have provision for the expression of views contrary to the mainstream, and even directly oppositional to it. This must furthermore extend to the means by which to convey such messages. Public disgust is certainly not justification enough to deny the right to expression. The exercise of a right can only be denied to someone when there is a direct harm to others by exercising that right. In terms of free speech, the words or expressions used by someone must result in actual harms to others, harms that outweigh the inherent harms of denying someone their rights, which is itself a kind of violation. No such harm exists in the case of flag burning¹. Some people have an irrational attachment to the symbolic significance of the flag, but it should not be expected by law that everyone share that view. The flag, like all symbols of beliefs and groups, is not inviolable, nor is anyone's piece of mind or health so attached to its wellbeing that the desecration or defacing of it could cause any true harm. Furthermore, the patriotism of individuals watching a flag burning is not affected by it. This view is upheld, for example, by Supreme Court opinion in Texas v. Johnson, when the opinion argued that there could be no better response to a flag burning by someone opposed to such an action than waving their own flag or saluting and paying respect to the burning flag². People can thus show their opposition peacefully without infringing the right of a protestor to burn a flag. Banning flag desecration on account of a sense of moral disgust, or of the threat to public order caused by angry counter-protestors, is the prohibition of an otherwise lawful act for the reason that others will commit crimes in response. Clearly, these are not justification for banning flag burning.

¹Welch, Michael. 2000. Flag Burning: Moral Panic and the Criminalization of Protest. Piscataway: Aldine Transaction.
²Eisler, Kim. 1993. A Justice for All: William J. Brennan Jr. and the Decision that Transformed America. New York: Simon and Schuster.

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The prevailing will of the majority can outweigh that of individuals with regard to free speech in some instances, namely when there is harm to people from the acts of individuals. Such is the case with things like hate speech, and certainly does so in the case of flag burning. This is because the American people have such a universal attachment to it that the desecration of the national flag is internalized as a personal attack on themselves. This is certainly a serious and real harm that makes the prohibition of flag burning entirely justified.

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