why do we burn the american flag

It was shortly before the Fourth of July in 1989 two centuries after the Constitution of the United States took effect when the Supreme Court declared that the government could not stop citizens from desecrating the nation s flag. The patriotic mind recoils, TIME s Walter Isaacson
in the weeks that followed the decision. Reverence for the flag is ingrained in every schoolchild who has quailed at the thought of letting it touch the ground, in every citizen moved by pictures of it being raised at Iwo Jima or planted on the moon, in every veteran who has ever heard taps played at the end of a Memorial Day parade, in every gold-star mother who treasures a neatly folded emblem of her family s supreme sacrifice. Yet, he continued, that was precisely the reason why the court, in the case Texas v. Johnson, declared that federal and state laws that protect the flag are in violation of free-speech protections. The flag is so revered because it represents the land of the free, and that freedom includes the ability to use or abuse that flag in protest. Almost immediately after the ruling was made, President Bush a solution: a constitutional amendment that would exempt flag-desecration as protected speech. But the legislative branch struck first and the Flag Protection Act of 1989, which made it criminal to desecrate the flag, regardless of motive.


Protesters responded quickly by burning flags, in an attempt to get the issue back to the Supreme Court. Almost exactly a year after Texas v. Johnson, their wish came true. In United States v. Eichman, which was decided exactly 25 years ago, on June 11, 1990, the Supreme Court once again ruled that burning the flag was an example of constitutionally protected free speech. Further attempts to protect the flag with an amendment were batted about in the years that followed, but they never went anywhere. As Isaacson pointed out in returning to the issue the week after the Eichman decision came down, the 1990s fight over flag-burning came at a time when the nation was seemingly less polarized: Paradoxically, the willingness to scale back First Amendment permissiveness comes when the divisions in American society seem to be at a 25-year low. In the 1960s the battle between flag wavers and flag burners represented a traumatic schism over the Vietnam War and national morality in general. Even in those incendiary times, there was never a serious effort to pass a constitutional amendment. Now the issue has become, so to speak, less burning. With the ideological battles at home in abeyance and challenges from abroad less severe, it would seem that the nation would feel more secure about the glorious discomforts that come from tolerating forms of free speech even when they are as offensive as the antics of flag burners or the lyrics of 2 Live Crew or the photographs of Robert Mapplethorpe.


Read the full story, here in the TIME Vault: President-elect Donald Trump wrote on Tuesday that anyone caught burning the American flag should face consequences -- including having their citizenship yanked or facing a year in jail, according to his tweet. The act is considered offensive by many, but flag burning is legal in the U. S. under Supreme Court rulings that it is constitutionally protected speech under the First Amendment. It was not clear what sparked Trump's tweet, but it comes after a college in Massachusetts took down an American flag on campus during protests of TrumpБs victory after a previous flag burning incident. Many have protested the decision by Hampshire College in Amherst, Mass. What Is the Law? In 1989, the high court ruled that flag burning was a form of "symbolic speech" under the Constitution. The 5-4 decision came in a case involving Gregory Joey Johnson who, outside the 1984 Republican National Convention, burned the flag to protest the policies of then-President. Johnson faced a fine and a year in prison for violating a Texas law that made burning the flag a felony. The case made its way to the Supreme Court and although divided, the justices sided with Johnson, reversing the lower court ruling.


It is unclear whether any of TrumpБs potential Supreme Court nominees would side with him on outlawing flag burning. Former Justice sided with the majority in the 1989 ruling that flag burning is protected as Бsymbolic speech. Б Trump has praised Scalia and said that he would seek to appoint a similar justice to the court. Proposed Laws In 1990, Congress passed the Flag Protection Act to outlaw knowingly burning or otherwise defacing the American flag. The Supreme Court shot down that law as well, holding that it violated the First Amendment. There have been other attempts by Congress to legislate flag burning, but none have passed. The House went as far as approving an amendment to ban "flag desecration," but it has never made it through the full Senate. Congress shot down the most recent proposed constitutional amendment to ban flag burning in 2006. The measure, co-sponsored by, would have outlawed flag desecration and made it punishable by a fine. Reaction Trump transition team spokesperson Jason Miller defended the president-electБs tweet. "Flag burning should be illegal," Miller said on CNN. "The president-elect is a very strong supporter of the First Amendment, but there's a big difference between that and burning the American flag. " Some of TrumpБs fellow Republicans broke with his stance on flag burning.


House Majority Leader Kevin McCarthy, a Republican, stated that while he does not "support or believe in the idea of people burning the American flag, I support the First Amendment. " The American Civil Liberties Union slammed TrumpБs tweet as Бfundamentally un-American. " БThe idea that the government could not only censor someone for engaging in political speech, but actually revoke a protesterБs U. S. citizenship as a punishment for political speech is unconstitutional and fundamentally un-American,Б ACLU senior staff attorney Lee Rowland said. White House Press Secretary Josh Earnest criticized TrumpБs suggestion that flag burners face jail time or lose citizenship, saying that Бwe have a responsibility as a countryБ to defend the First Amendment. Senate Majority Leader also broke with Trump on his call to punish flag burners. In reference to burning the flag, McConnell said Бthat activity is a protected First Amendment right. A form of unpleasant speech, and in this country we have a long tradition of respecting unpleasant speech. I happen to support the Supreme CourtБs decision on that matter. Б ABC NewsБ Brian Hartman, Michael Edison Hayden and Supreme Court Contributor Kate Shaw contributed to this report.

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