Many have protested the decision by Hampshire College in Amherst, Mass. In , the high court ruled that flag burning was a form of "symbolic speech" under the Constitution. The decision came in a case involving Gregory Joey Johnson who, outside the Republican National Convention, burned the flag to protest the policies of then-President Ronald Reagan.
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. 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.
Write to Lily Rothman at lily. William Kunstler second from left, discusses the Supreme Court ruling to declare the Flag Protection Act of unconstitutional at a press conference on June 11, in New York, Kunstler and David Cole, second from right, represented Shawn Eichman, right, a defendant in the case, and Joey Johnson, a defendant in a similar case in By Lily Rothman. During the demonstration, he doused an American flag with kerosene and set it on fire.
Johnson was tried and convicted under a Texas law outlawing flag desecration. In Texas v. President George H. In Congress adopted the Flag Protection Act. Once the law took effect, protesters burned American flags in Seattle and Washington, D. The protesters were arrested and convicted, and their appeals to the Supreme Court were expedited under terms of the new law. In United States v. Eichman , the Court, once again by a vote, held that burning the flag was allowable expressive conduct.
As in Texas v. After the decision in Eichman , Congress once again considered a proposed constitutional amendment to protect the American flag. In every Congress between and , the House of Representatives, when controlled by Republicans, has proposed such an amendment by the necessary two-thirds majority, but each time the amendment has fallen short in the Senate, which is less sympathetic to amendments in general. The most recent proposal was in ; the amendment passed the House by a vote of , but failed by one vote, , in the Senate.
Proponents of an amendment believe that the United States should be able to preserve the flag as a symbol of national unity. Our nation's experiment with an amendment to the Constitution concerning Prohibition shows that a cure by amendment to the Constitution may itself incite harm of the very nature it seeks to prevent. The flag desecration amendment is a solution in search of a problem. The expressive act, burning a flag, which this amendment attempts to curtail, is exceedingly rare.
Professor Robert Justin Goldstein documented approximately 45 reported incidents of flag burning in the over years between when the flag was adopted, and , when Congress passed, and the Supreme Court rejected, the Flag Protection Act.
About half of these occurred during the Vietnam War. This amendment would be the beginning, not the end, of the question of how to regulate a certain form of expression.
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