Brandon Francom

Brother Adam Brown

Poli 110

19 September 2016

Debate Paper 1

The repeatedly proposed Flag Desecration Amendment to the Constitution is

as controversial as it is brief. It simply states: The Congress shall have power

to prohibit the physical desecration of the flag of the United States. However

brief it is, the implications of such an amendment being ratified by the states

are huge. Although burning a national flag is a blatant sign of disrespect, it

symbolizes an expression of disagreement with the political system of the

United States, and is therefore covered by the 1st amendment. If the

amendment were somehow ratified, it would also be nearly impossible to

enforce due to the ambiguity of the proposed amendment. Most importantly,

a country that prides itself on a document that secures basic rights like

freedom of speech, can never add a clause to that same document that

would then restrict it.

In 1989, the Flag Protection Act was overturned by the Supreme Court case

Texas v. Johnson. Gregory Johnson was arrested after having burned an

American flag outside of the Republican National Convention and was

convicted of having vandalized respected objects. His conviction was later

turned over by the Texas Court of Criminal Appeals because, as they stated,
"the right to differ is the centerpiece of our First Amendment freedoms" and

that "a government cannot mandate ... a feeling of unity in its citizens". The

Supreme Court later upheld Texas' ruling, stating that "Johnson's burning of

the flag constituted expressive conduct, permitting him to invoke the First

Amendment". Since Texas v. Johnson, Congress has repeatedly tried to pass

Flag Protection Acts, although each attempt has been unsuccessful.

Both the state of Texas and the Supreme Court's ruling regarding flag

burning serve to protect the 1st amendment rights of the American people.

Mr. Johnson burning the American flag in a public space was a form of non-

disruptive symbolic speech, therefore protected by the constitution. If he had

been burning the flag in a government or private building, then the specific

ordinances and codes of that building may have inhibited him from being

able to burn the flag. Today, if peaceful protestors in a public area decide to

burn a flag, or desecrate other American symbols like an image of the

President's face, they would likewise be protected by the first amendment.

By amending the constitution to prohibit the burning of flags, the

government would effectively restrict the ability of Americans to symbolically

protest how they would like to. In addition, the proposed amendment would

be too vague to accurately enforce. For example, the amendment does not

specify which types of flags would be covered by the amendment, and if

altered flags, like on clothing or logos, would also receive the same
protection. Would privately owned flags be protected as well, or only the

ones owned by the government? Would former American flags, such as the

13-star flag also be protected? And if the image of the flag was printed on

clothing or paper, would it also fall under the amendment? Such a vague

amendment would only result in questionable enforcement, if any at all.

Issues today, like Colin Kaepernick's kneeling during the national anthem,

show us that knowing the limits of the first amendment is crucial now more

than ever. We may disagree with their message, but allowing protestors to

symbolically present their message is critical to preserving our ability to

share ours.