When President Trump was still president elect, in November 2016, he tweeted, “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”
Criminalizing the burning of the American flag has been a topic of controversy for years. There is strong opposition on both sides of the aisle and arguments to be made by both parties. The history of flag burning that led to the decriminalization of flag desecration has been influenced by the current events of that time.
The biggest argument against flag burning is simply that it’s unpatriotic. The flag is a symbol of unity, freedom and the American spirit. More than anything, burning it just feels wrong. To many devoted and proud Americans, it’s as sacred as the Holy Bible. To them, it’s almost enough to make one second guess the validity of the First Amendment.
It’s because of the strong patriotism so many Americans feel that makes this such a difficult issue as is reflected in past court decisions, which just shows how the court has struggled with applying this act to the first amendment.
“The first U.S. Supreme Court ruling on flag desecration was passed on 1907 in Halter v. Nebraska case.”
The court ruled that Flag desecration was determined to be an innate sign of disrespect for the nation, so much so that upholding statutes prohibiting contempt of the flag was, at the time, acceptable.
In 1968, during the Vietnam War, protesters burned American flags at an event in Central Park. In response, Congress passed the Federal Flag Desecration Law. Unsurprisingly, this was met with some outrage. At a time when too many soldiers were being delivered in caskets, the American people felt like their voices were being stifled and their actions limited to whatever form of protest was deemed less threatening to the U.S. government.
This remained a topic of controversy and debate in the decades following. There was a case in 1972, where the Supreme Court ruled against laws banning contempt of the flag, which was followed by Spence v. Washington in 1974, the peace sticker case and each court decision strayed further and further away from the outcome of Halter v. Nebraska. While court cases amended past decisions, states began to revise their own flag desecration laws to keep up with the changes.
By 1984, the Supreme Court struck down all laws banning flag desecration and, in 1989, in Texas v. Johnson, the Supreme Court determined that criminalizing “the burning of an American flag as a means of political protest violates the First Amendment.” There have been attempts to change this decision by passing a constitutional amendment which “consistently passed in the House but failed in the Senate since the Republican congressional takeover of 1994.”
President Trump’s assertion isn’t the first time strong opposition has been voiced against the ultimate decision of the court. In fact, “Congress made seven attempts to overrule the U.S. Supreme Court from 1990 through 2005 by passing a constitutional amendment that would make an exception to the First Amendment.” To say the decision to decriminalize the desecration of the American flag was one taken lightly, would be alienating half the country.
As it stands now, the most a person can be charged for when burning a flag in public is a misdemeanor for starting a fire without a permit. Regardless of how the public may feel, every U.S. citizen has the first amendment right to freedom of expression and that will likely include activities that not everyone will find favorable.
It needs to be understood that when the government is allowed to ban burning the flag, it just opens the flood gates for more limits on our bill of rights. There are religious groups who would like to criminalize actions that disrespect their faith. There are public figures who would like to stop the media from publishing anything that might show them in a less than bright light.
Protecting the right to desecrate the flag is not about allowing people to disrespect America, it’s about allowing the freedom of expression and prohibiting the government from limiting our natural rights. Unfortunately, no man-made system is perfect and there are people that will use this right to spread their discriminatory views just to harm others. This is unavoidable but necessary and, if nothing else, it’s a reminder that freedom is costly.
Elizabeth Fequiere is a staff writer at the Dakota Student. She can be reached at [email protected]