The issue of flag desecration has been and continues to be a highly
controversial issue; on the one side there are those who believe that the flag
is a unique symbol for our nation which should be preserved at all costs, while
on the other are those who believe that flag burning is a form of free speech
and that any legislation designed to prevent this form of expression is contrary
to the ideals of the First Amendment to our Constitution. Shawn Eichman, as well
as the majority of the United States Supreme Court, is in the latter of these
groups. Many citizens believe that the freedom of speech granted to them in the
First Amendment means that they can express themselves in any manner they wish
as long as their right of expression does not infringe on the rights of others;
others, however, believe that there are exceptions to this right of speech. Such
constitutional issues need to be worked out by the Supreme Court, which uses its
powers of constitutional interpretation and judicial review to outline the
underpinnings of the Constitution and interpret the law. The case which acted as
an impetus for Eichman’s actions was that of Texas v. Johnson. “In 1984, in
Dallas, Gregory Johnson, a member of the Revolutionary Communist Youth Brigade,
a Maoists society, publicly burned a stolen American flag to protests the
re-nomination of Ronald Reagan as the Republican candidate” (Levy 217). The
police consequently arrested Johnson not for his message but for his manner in
delivering it; he had violated a Texas statute that prohibited the desecration
of a venerated object by acts that “the offender knows will seriously offend
on or more persons” (Downs 83). Johnson had hoped to capture America’s
attention with this burning, and he did; however, his protest earned him more
than a moment in the national spotlight. “Under Texas’s tough
anti-flag-burning statute, Johnson was fine $2,000 and sentenced to a year in
prison” (Relin 16). In Texas v. Johnson a majority of the Supreme Court
considered for the first time whether the First Amendment protects desecration
of the United States flag as a form of symbolic speech. A sharply divided Court
had previously dealt with symbolic speech cases that involved alleged misuses of
the flag. While “the Court had ruled in favor of the defendants in those cases
(Street v. New York, 1969; Smith v. Goguen, 1974; Spence v. Washington, 1974),
it had done so on narrow grounds, refusing to confront the ultimate question
status of flag desecration” (Downs 868). The court ruled in favor of Johnson
(5-4), believing that “there was no evidence that Johnson’s expression
threatened an imminent disturbance of the peace, and that the statute’s
protection of the integrity of the flag as a symbol was improperly directed at
the communicative message entailed in flag burning” (Downs 868). Justice
Brennan concluded by saying, “We do not consecrate the flag by punishing
it’s desecration, for in doing so we dilute the freedom that this cherished
emblem represents” (Witt 409). Reacting to this ruling, the Untied State’s
Congress sought to pass legislation that would overturn it. The Flag Protection
Amendment was introduced and then voted down, but then the Flag Protection Act
was passed in both houses. President Bush allowed this act to pass without his
signature, “an expression of his preference for a Constitutional amendment”
(Apel “Flag Protection”). The Act criminalized the conduct of anyone who
“knowingly mutilates, defaces, physically defiles, burns, maintains on the
floor or ground, or tramples upon” a United States flag, except conduct
related to the disposal of a “worn or soiled” flag (U.S.). On October 30th,
1989, the day the bill went into effect, hundreds of people burned flags; among
them was Shawn Eichman. The Justice Department admitted that the law was
unconstitutional under Texas v. Johnson, but prosecuted anyways, hoping to get
the court to reverse its decision. The court decided that “flag desecration is
a form of political expression that is protected under the First Amendment
rights to free speech,” and ruled in favor of Eichman by a vote of 5 to 4,
thus nullify the Flag Protection Act which Eichman had been protesting
(“House” 1144). The majority consisted of Justices Brennan, Marshall,
Blackmun, Scalia, and Kennedy. Dissenting were Justices Stevens, Renquist,
White, and O’Connor. For the majority opinion, Justice Brennan wrote the
following: Although the Flag Protection Act contains no explicit content-based
limitation on the scope of prohibited conduct, it is nevertheless clear that the
Government’s asserted interest is related to the suppression of free
expression...Moreover, the precise language of the Act’s prohibitions confirms
Congress’ interest in the communicative impact of flag destruction...If there
is a bedrock principle underlying the First Amendment, it is that the Government
may not prohibit the expression of an idea simply because society finds the idea
offensive or disagreeable. Punishing desecration of the flag dilutes the very
freedom that makes this emblem so revered, and worth revering. (Supreme)
According to Justice Anthony Stevens, “The landmark decision was simply a pure
command of the Constitution. It is poignant but fundamental that the flag
protects even those who hold it in contempt” (Relin 16). Dissenting, Justice
Stevens, along with the Chief Justice, Justice White and O’Connor wrote: ...It
is equally well settled that certain methods of expression may be prohibited
if(a) the prohibition is supported by a legitimate societal interest this is
unrelated to suppression of the ideas the speaker desires to express; (b) the
prohibition does not entail any interference with the speaker’s freedom to
express those ideas by other means; and (c) the interest in allowing the speaker
complete freedom of choice among alternative methods of expression is less
important than the societal interest supporting the prohibition. (Supreme)
Justice Stevens concluded his opinion that by destroying the symbol of freedom,
the individual communicates a willingness to destroy those freedoms themselves:
By burning the embodiment of America’s collective commitment to freedom and
equality, the flag burner charges that the majority has forsaken the
commitment--that continued respect for the flag is nothing more than hypocrisy.
Such a charge may be made even if the flag burner loves the country and
zealously pursues the ideals that the country claims to honor. (Supreme) Groups
such as the American Civil Liberties Union (ACLU) praised the ruling. Laura W.
Murphy, Director of the ACLU’s National Washington Office showed her support
when she said, “The First Amendment is this country’s first principle. It is
a critical part of what has made our country uniquely free. We have been
strengthened, not weakened, by the sweep of its language and by the Supreme
Court’s adherence to its true meaning” (Apel “ACLU”). Many anti-flag
desecration groups, particularly the Citizens’ Flag Alliance (CFA), were
outraged by this ruling. These organizations petitioned Congress to reintroduce
the Flag Protection Amendment. Since the ratification of the Constitution in
1789, some 10,000 attempts have been made to amend it. They have included ideas
such as “eliminating the Senate,” and renaming the country the “United
States of Earth.” But “never in the nations history has anyone tried to
amend the Bill of Rights.” (Relin 18) To do so would be a dramatic step in
that it could pave the way for further future limitations on our constitutional
freedoms. For an amendment to the Constitution to be made, “The house and the
Senate have to propose (each by 2/3 vote) exactly the same text before the
amendment is open for ratification by the states” (Apel “Hasbrouck”). If
the amendment (to the First Amendment) is passed in both chambers, it then goes
to the states for ratification. In 1990, both the House and Senate failed “to
muster the required two-thirds majority to pass the Flag Protection Amendment
(Citizens’). In 1995, however, the amendment cleared the House by a vote of
312-120. This Senate Joint Resolution 31 (S.J. Res. 31) was also passed by the
Senate Judiciary Committee by a vote of 12-6, but was then rejected by the
Senate by only 3 votes. In February of 1998, Senators Orrin Hatch (R-UT) and Max
Cleland (D-GA) reintroduced the amendment as S.J. Res. 40, but it was decided
that there was not enough time left in the term to vote on the amendment. Most
recently, in March of 1999, the Flag Protection Amendment was reintroduced once
again as S. J. Res. 14. Once again, it was passed in the House and by the Senate
Judiciary Committee, but to date has not become ratified. Among those against
the original amendment in 1990 were George Mitchell, Tom Daschle, Patrick Leahy,
Dale Bumpers, David Boren, Howard Metzenbaum, Barbara Mikulski, Jeff Bingaman,
Bill Bradley, Paul Simon, and Christopher Dodd. Perhaps the most ardent opponent
to the amendment was Ted Kennedy. In an eloquent speech he gave on June 11, 1990
he stated: When we pledge allegiance to the flag, we pledge allegiance to the
principles for which it stands. Few, if any, of those are more fundamental to
the strength of our democracy than the first amendment’s guarantee of freedom
of speech. Let us not start down this disastrous road of restricting the
majestic scope of the first amendment by picking the kinds of speech that are to
be permitted in our society. (Ted) He goes on to mention that this
constitutional amendment might “irreparably damage the separation of powers
that has protected our constitutional freedoms throughout history...because
judges insulated from public pressure can best evaluate the claims of unpopular
minorities.” Kennedy is saying here that since Congress can be greatly
influenced by special interest groups, such as the Citizens’ Flag Alliance, it
is the responsibility of the judiciary branch of government to objectively rule
as to what is truly constitutional. If the Senate amends the Bill of Rights for
the first time in history by passing the Flag Protection Amendment, who knows
where they would stop. “Every nation in the world has a flag, and many of
them, including some democracies, have laws against desecrating their flag. No
other nation has a Bill of Rights” (Levy 219). The year 1991 marked the 200th
anniversary of its ratification, and, in my opinion, it requires no limiting
amendment. The American people understand that they are not threatened by flag
burners, and the American people prefer the First Amendment undiluted. They
understand that imprisoning a few extremists is not what patriotism is all
about; forced patriotism is surely not American. Rep. Gary Ackerman (D-New York)
expressed these ideas when he said, If a jerk burns a flag, America is not
threatened. If a jerk burns a flag, democracy is not under siege. If A jerk
burns a flag, freedom is not at risk and we are not threatened...we are
offended; and to change our Constitution because someone offends us is, in
itself, unconscionable. (Apel Chronology). Flag burning may be all wrong, but a
lot of wrongheaded speech is protected by the First Amendment. The Bill or
Rights is a wonderfully terse, eloquent, and effective summation of individual
freedoms, and there is no need to add “except for flag burners.” That
exception, as the Court majority in United States v. Eichman realized, might
show that the nation is so lacking in faith in itself that it permits the
Johnsons and Eichmans to diminish the flag’s meaning. They are best treated,
as Brennan argued, by saluting the flag that they burn or by ignoring them
contemptuously, not by paving the way for an assault on our constitutional
rights. In this research, I noted that all of the proponents for the Eichman
decision who were also against the Flag Protection Amendment used very logical,
well-structured arguments, while those dissenting and in support of the
“amendment to an amendment” use mostly emotional arguments and focus on the
respect owed to all those who have died in the military protecting the nation.
These in the latter group seem usually to be associated with the military
themselves (e.g. Major General Patrick H. Brady is the Board Chairman of the
Citizens’ Flag Alliance). I entirely agree with the Supreme Court’s ruling
in this case. Justice Stevens argued that flag-burning was not an acceptable
form of expression because people could convey their views by other means; he
seems to have failed to realize, however, that it is not the right of the
government to limit one to a certain means of voicing his or her opinions. Flag
burning is a form of protest which rarely occurs and which does little but
offend others. Perhaps a law such as the Flag Protection Act, while
unconstitutional, is permissible as a means of silencing organization such as
the CFA, but an amendment to our Bill of Rights if certainly going too far. The
issue of flag desecration has been and continues to be a highly controversial
issue; on the one side there are those who believe that the flag is a unique
symbol for our nation which should be preserved at all costs, while on the other
are those who believe that flag burning is a form of free speech and that any
legislation designed to prevent this form of expression is contrary to the
ideals of the First Amendment to our Constitution. Shawn Eichman, as well as the
majority of the United States Supreme Court, is in the latter of these groups.
Many citizens believe that the freedom of speech granted to them in the First
Amendment means that they can express themselves in any manner they wish as long
as their right of expression does not infringe on the rights of others; others,
however, believe that there are exceptions to this right of speech. Such
constitutional issues need to be worked out by the Supreme Court, which uses its
powers of constitutional interpretation and judicial review to outline the
underpinnings of the Constitution and interpret the law. The case which acted as
an impetus for Eichman’s actions was that of Texas v. Johnson. “In 1984, in
Dallas, Gregory Johnson, a member of the Revolutionary Communist Youth Brigade,
a Maoists society, publicly burned a stolen American flag to protests the
re-nomination of Ronald Reagan as the Republican candidate” (Levy 217). The
police consequently arrested Johnson not for his message but for his manner in
delivering it; he had violated a Texas statute that prohibited the desecration
of a venerated object by acts that “the offender knows will seriously offend
on or more persons” (Downs 83). Johnson had hoped to capture America’s
attention with this burning, and he did; however, his protest earned him more
than a moment in the national spotlight. “Under Texas’s tough
anti-flag-burning statute, Johnson was fine $2,000 and sentenced to a year in
prison” (Relin 16). In Texas v. Johnson a majority of the Supreme Court
considered for the first time whether the First Amendment protects desecration
of the United States flag as a form of symbolic speech. A sharply divided Court
had previously dealt with symbolic speech cases that involved alleged misuses of
the flag. While “the Court had ruled in favor of the defendants in those cases
(Street v. New York, 1969; Smith v. Goguen, 1974; Spence v. Washington, 1974),
it had done so on narrow grounds, refusing to confront the ultimate question
status of flag desecration” (Downs 868). The court ruled in favor of Johnson
(5-4), believing that “there was no evidence that Johnson’s expression
threatened an imminent disturbance of the peace, and that the statute’s
protection of the integrity of the flag as a symbol was improperly directed at
the communicative message entailed in flag burning” (Downs 868). Justice
Brennan concluded by saying, “We do not consecrate the flag by punishing
it’s desecration, for in doing so we dilute the freedom that this cherished
emblem represents” (Witt 409). Reacting to this ruling, the Untied State’s
Congress sought to pass legislation that would overturn it. The Flag Protection
Amendment was introduced and then voted down, but then the Flag Protection Act
was passed in both houses. President Bush allowed this act to pass without his
signature, “an expression of his preference for a Constitutional amendment”
(Apel “Flag Protection”). The Act criminalized the conduct of anyone who
“knowingly mutilates, defaces, physically defiles, burns, maintains on the
floor or ground, or tramples upon” a United States flag, except conduct
related to the disposal of a “worn or soiled” flag (U.S.). On October 30th,
1989, the day the bill went into effect, hundreds of people burned flags; among
them was Shawn Eichman. The Justice Department admitted that the law was
unconstitutional under Texas v. Johnson, but prosecuted anyways, hoping to get
the court to reverse its decision. The court decided that “flag desecration is
a form of political expression that is protected under the First Amendment
rights to free speech,” and ruled in favor of Eichman by a vote of 5 to 4,
thus nullify the Flag Protection Act which Eichman had been protesting
(“House” 1144). The majority consisted of Justices Brennan, Marshall,
Blackmun, Scalia, and Kennedy. Dissenting were Justices Stevens, Renquist,
White, and O’Connor. For the majority opinion, Justice Brennan wrote the
following: Although the Flag Protection Act contains no explicit content-based
limitation on the scope of prohibited conduct, it is nevertheless clear that the
Government’s asserted interest is related to the suppression of free
expression...Moreover, the precise language of the Act’s prohibitions confirms
Congress’ interest in the communicative impact of flag destruction...If there
is a bedrock principle underlying the First Amendment, it is that the Government
may not prohibit the expression of an idea simply because society finds the idea
offensive or disagreeable. Punishing desecration of the flag dilutes the very
freedom that makes this emblem so revered, and worth revering. (Supreme)
According to Justice Anthony Stevens, “The landmark decision was simply a pure
command of the Constitution. It is poignant but fundamental that the flag
protects even those who hold it in contempt” (Relin 16). Dissenting, Justice
Stevens, along with the Chief Justice, Justice White and O’Connor wrote: ...It
is equally well settled that certain methods of expression may be prohibited
if(a) the prohibition is supported by a legitimate societal interest this is
unrelated to suppression of the ideas the speaker desires to express; (b) the
prohibition does not entail any interference with the speaker’s freedom to
express those ideas by other means; and (c) the interest in allowing the speaker
complete freedom of choice among alternative methods of expression is less
important than the societal interest supporting the prohibition. (Supreme)
Justice Stevens concluded his opinion that by destroying the symbol of freedom,
the individual communicates a willingness to destroy those freedoms themselves:
By burning the embodiment of America’s collective commitment to freedom and
equality, the flag burner charges that the majority has forsaken the
commitment--that continued respect for the flag is nothing more than hypocrisy.
Such a charge may be made even if the flag burner loves the country and
zealously pursues the ideals that the country claims to honor. (Supreme) Groups
such as the American Civil Liberties Union (ACLU) praised the ruling. Laura W.
Murphy, Director of the ACLU’s National Washington Office showed her support
when she said, “The First Amendment is this country’s first principle. It is
a critical part of what has made our country uniquely free. We have been
strengthened, not weakened, by the sweep of its language and by the Supreme
Court’s adherence to its true meaning” (Apel “ACLU”). Many anti-flag
desecration groups, particularly the Citizens’ Flag Alliance (CFA), were
outraged by this ruling. These organizations petitioned Congress to reintroduce
the Flag Protection Amendment. Since the ratification of the Constitution in
1789, some 10,000 attempts have been made to amend it. They have included ideas
such as “eliminating the Senate,” and renaming the country the “United
States of Earth.” But “never in the nations history has anyone tried to
amend the Bill of Rights.” (Relin 18) To do so would be a dramatic step in
that it could pave the way for further future limitations on our constitutional
freedoms. For an amendment to the Constitution to be made, “The house and the
Senate have to propose (each by 2/3 vote) exactly the same text before the
amendment is open for ratification by the states” (Apel “Hasbrouck”). If
the amendment (to the First Amendment) is passed in both chambers, it then goes
to the states for ratification. In 1990, both the House and Senate failed “to
muster the required two-thirds majority to pass the Flag Protection Amendment
(Citizens’). In 1995, however, the amendment cleared the House by a vote of
312-120. This Senate Joint Resolution 31 (S.J. Res. 31) was also passed by the
Senate Judiciary Committee by a vote of 12-6, but was then rejected by the
Senate by only 3 votes. In February of 1998, Senators Orrin Hatch (R-UT) and Max
Cleland (D-GA) reintroduced the amendment as S.J. Res. 40, but it was decided
that there was not enough time left in the term to vote on the amendment. Most
recently, in March of 1999, the Flag Protection Amendment was reintroduced once
again as S. J. Res. 14. Once again, it was passed in the House and by the Senate
Judiciary Committee, but to date has not become ratified. Among those against
the original amendment in 1990 were George Mitchell, Tom Daschle, Patrick Leahy,
Dale Bumpers, David Boren, Howard Metzenbaum, Barbara Mikulski, Jeff Bingaman,
Bill Bradley, Paul Simon, and Christopher Dodd. Perhaps the most ardent opponent
to the amendment was Ted Kennedy. In an eloquent speech he gave on June 11, 1990
he stated: When we pledge allegiance to the flag, we pledge allegiance to the
principles for which it stands. Few, if any, of those are more fundamental to
the strength of our democracy than the first amendment’s guarantee of freedom
of speech. Let us not start down this disastrous road of restricting the
majestic scope of the first amendment by picking the kinds of speech that are to
be permitted in our society. (Ted) He goes on to mention that this
constitutional amendment might “irreparably damage the separation of powers
that has protected our constitutional freedoms throughout history...because
judges insulated from public pressure can best evaluate the claims of unpopular
minorities.” Kennedy is saying here that since Congress can be greatly
influenced by special interest groups, such as the Citizens’ Flag Alliance, it
is the responsibility of the judiciary branch of government to objectively rule
as to what is truly constitutional. If the Senate amends the Bill of Rights for
the first time in history by passing the Flag Protection Amendment, who knows
where they would stop. “Every nation in the world has a flag, and many of
them, including some democracies, have laws against desecrating their flag. No
other nation has a Bill of Rights” (Levy 219). The year 1991 marked the 200th
anniversary of its ratification, and, in my opinion, it requires no limiting
amendment. The American people understand that they are not threatened by flag
burners, and the American people prefer the First Amendment undiluted. They
understand that imprisoning a few extremists is not what patriotism is all
about; forced patriotism is surely not American. Rep. Gary Ackerman (D-New York)
expressed these ideas when he said, If a jerk burns a flag, America is not
threatened. If a jerk burns a flag, democracy is not under siege. If A jerk
burns a flag, freedom is not at risk and we are not threatened...we are
offended; and to change our Constitution because someone offends us is, in
itself, unconscionable. (Apel Chronology). Flag burning may be all wrong, but a
lot of wrongheaded speech is protected by the First Amendment. The Bill or
Rights is a wonderfully terse, eloquent, and effective summation of individual
freedoms, and there is no need to add “except for flag burners.” That
exception, as the Court majority in United States v. Eichman realized, might
show that the nation is so lacking in faith in itself that it permits the
Johnsons and Eichmans to diminish the flag’s meaning. They are best treated,
as Brennan argued, by saluting the flag that they burn or by ignoring them
contemptuously, not by paving the way for an assault on our constitutional
rights. In this research, I noted that all of the proponents for the Eichman
decision who were also against the Flag Protection Amendment used very logical,
well-structured arguments, while those dissenting and in support of the
“amendment to an amendment” use mostly emotional arguments and focus on the
respect owed to all those who have died in the military protecting the nation.
These in the latter group seem usually to be associated with the military
themselves (e.g. Major General Patrick H. Brady is the Board Chairman of the
Citizens’ Flag Alliance). I entirely agree with the Supreme Court’s ruling
in this case. Justice Stevens argued that flag-burning was not an acceptable
form of expression because people could convey their views by other means; he
seems to have failed to realize, however, that it is not the right of the
government to limit one to a certain means of voicing his or her opinions. Flag
burning is a form of protest which rarely occurs and which does little but
offend others. Perhaps a law such as the Flag Protection Act, while
unconstitutional, is permissible as a means of silencing organization such as
the CFA, but an amendment to our Bill of Rights if certainly going too far. The
issue of flag desecration has been and continues to be a highly controversial
issue; on the one side there are those who believe that the flag is a unique
symbol for our nation which should be preserved at all costs, while on the other
are those who believe that flag burning is a form of free speech and that any
legislation designed to prevent this form of expression is contrary to the
ideals of the First Amendment to our Constitution. Shawn Eichman, as well as the
majority of the United States Supreme Court, is in the latter of these groups.
Many citizens believe that the freedom of speech granted to them in the First
Amendment means that they can express themselves in any manner they wish as long
as their right of expression does not infringe on the rights of others; others,
however, believe that there are exceptions to this right of speech. Such
constitutional issues need to be worked out by the Supreme Court, which uses its
powers of constitutional interpretation and judicial review to outline the
underpinnings of the Constitution and interpret the law. The case which acted as
an impetus for Eichman’s actions was that of Texas v. Johnson. “In 1984, in
Dallas, Gregory Johnson, a member of the Revolutionary Communist Youth Brigade,
a Maoists society, publicly burned a stolen American flag to protests the
re-nomination of Ronald Reagan as the Republican candidate” (Levy 217). The
police consequently arrested Johnson not for his message but for his manner in
delivering it; he had violated a Texas statute that prohibited the desecration
of a venerated object by acts that “the offender knows will seriously offend
on or more persons” (Downs 83). Johnson had hoped to capture America’s
attention with this burning, and he did; however, his protest earned him more
than a moment in the national spotlight. “Under Texas’s tough
anti-flag-burning statute, Johnson was fine $2,000 and sentenced to a year in
prison” (Relin 16). In Texas v. Johnson a majority of the Supreme Court
considered for the first time whether the First Amendment protects desecration
of the United States flag as a form of symbolic speech. A sharply divided Court
had previously dealt with symbolic speech cases that involved alleged misuses of
the flag. While “the Court had ruled in favor of the defendants in those cases
(Street v. New York, 1969; Smith v. Goguen, 1974; Spence v. Washington, 1974),
it had done so on narrow grounds, refusing to confront the ultimate question
status of flag desecration” (Downs 868). The court ruled in favor of Johnson
(5-4), believing that “there was no evidence that Johnson’s expression
threatened an imminent disturbance of the peace, and that the statute’s
protection of the integrity of the flag as a symbol was improperly directed at
the communicative message entailed in flag burning” (Downs 868). Justice
Brennan concluded by saying, “We do not consecrate the flag by punishing
it’s desecration, for in doing so we dilute the freedom that this cherished
emblem represents” (Witt 409). Reacting to this ruling, the Untied State’s
Congress sought to pass legislation that would overturn it. The Flag Protection
Amendment was introduced and then voted down, but then the Flag Protection Act
was passed in both houses. President Bush allowed this act to pass without his
signature, “an expression of his preference for a Constitutional amendment”
(Apel “Flag Protection”). The Act criminalized the conduct of anyone who
“knowingly mutilates, defaces, physically defiles, burns, maintains on the
floor or ground, or tramples upon” a United States flag, except conduct
related to the disposal of a “worn or soiled” flag (U.S.). On October 30th,
1989, the day the bill went into effect, hundreds of people burned flags; among
them was Shawn Eichman. The Justice Department admitted that the law was
unconstitutional under Texas v. Johnson, but prosecuted anyways, hoping to get
the court to reverse its decision. The court decided that “flag desecration is
a form of political expression that is protected under the First Amendment
rights to free speech,” and ruled in favor of Eichman by a vote of 5 to 4,
thus nullify the Flag Protection Act which Eichman had been protesting
(“House” 1144). The majority consisted of Justices Brennan, Marshall,
Blackmun, Scalia, and Kennedy. Dissenting were Justices Stevens, Renquist,
White, and O’Connor. For the majority opinion, Justice Brennan wrote the
following: Although the Flag Protection Act contains no explicit content-based
limitation on the scope of prohibited conduct, it is nevertheless clear that the
Government’s asserted interest is related to the suppression of free
expression...Moreover, the precise language of the Act’s prohibitions confirms
Congress’ interest in the communicative impact of flag destruction...If there
is a bedrock principle underlying the First Amendment, it is that the Government
may not prohibit the expression of an idea simply because society finds the idea
offensive or disagreeable. Punishing desecration of the flag dilutes the very
freedom that makes this emblem so revered, and worth revering. (Supreme)
According to Justice Anthony Stevens, “The landmark decision was simply a pure
command of the Constitution. It is poignant but fundamental that the flag
protects even those who hold it in contempt” (Relin 16). Dissenting, Justice
Stevens, along with the Chief Justice, Justice White and O’Connor wrote: ...It
is equally well settled that certain methods of expression may be prohibited
if(a) the prohibition is supported by a legitimate societal interest this is
unrelated to suppression of the ideas the speaker desires to express; (b) the
prohibition does not entail any interference with the speaker’s freedom to
express those ideas by other means; and (c) the interest in allowing the speaker
complete freedom of choice among alternative methods of expression is less
important than the societal interest supporting the prohibition. (Supreme)
Justice Stevens concluded his opinion that by destroying the symbol of freedom,
the individual communicates a willingness to destroy those freedoms themselves:
By burning the embodiment of America’s collective commitment to freedom and
equality, the flag burner charges that the majority has forsaken the
commitment--that continued respect for the flag is nothing more than hypocrisy.
Such a charge may be made even if the flag burner loves the country and
zealously pursues the ideals that the country claims to honor. (Supreme) Groups
such as the American Civil Liberties Union (ACLU) praised the ruling. Laura W.
Murphy, Director of the ACLU’s National Washington Office showed her support
when she said, “The First Amendment is this country’s first principle. It is
a critical part of what has made our country uniquely free. We have been
strengthened, not weakened, by the sweep of its language and by the Supreme
Court’s adherence to its true meaning” (Apel “ACLU”). Many anti-flag
desecration groups, particularly the Citizens’ Flag Alliance (CFA), were
outraged by this ruling. These organizations petitioned Congress to reintroduce
the Flag Protection Amendment. Since the ratification of the Constitution in
1789, some 10,000 attempts have been made to amend it. They have included ideas
such as “eliminating the Senate,” and renaming the country the “United
States of Earth.” But “never in the nations history has anyone tried to
amend the Bill of Rights.” (Relin 18) To do so would be a dramatic step in
that it could pave the way for further future limitations on our constitutional
freedoms. For an amendment to the Constitution to be made, “The house and the
Senate have to propose (each by 2/3 vote) exactly the same text before the
amendment is open for ratification by the states” (Apel “Hasbrouck”). If
the amendment (to the First Amendment) is passed in both chambers, it then goes
to the states for ratification. In 1990, both the House and Senate failed “to
muster the required two-thirds majority to pass the Flag Protection Amendment
(Citizens’). In 1995, however, the amendment cleared the House by a vote of
312-120. This Senate Joint Resolution 31 (S.J. Res. 31) was also passed by the
Senate Judiciary Committee by a vote of 12-6, but was then rejected by the
Senate by only 3 votes. In February of 1998, Senators Orrin Hatch (R-UT) and Max
Cleland (D-GA) reintroduced the amendment as S.J. Res. 40, but it was decided
that there was not enough time left in the term to vote on the amendment. Most
recently, in March of 1999, the Flag Protection Amendment was reintroduced once
again as S. J. Res. 14. Once again, it was passed in the House and by the Senate
Judiciary Committee, but to date has not become ratified. Among those against
the original amendment in 1990 were George Mitchell, Tom Daschle, Patrick Leahy,
Dale Bumpers, David Boren, Howard Metzenbaum, Barbara Mikulski, Jeff Bingaman,
Bill Bradley, Paul Simon, and Christopher Dodd. Perhaps the most ardent opponent
to the amendment was Ted Kennedy. In an eloquent speech he gave on June 11, 1990
he stated: When we pledge allegiance to the flag, we pledge allegiance to the
principles for which it stands. Few, if any, of those are more fundamental to
the strength of our democracy than the first amendment’s guarantee of freedom
of speech. Let us not start down this disastrous road of restricting the
majestic scope of the first amendment by picking the kinds of speech that are to
be permitted in our society. (Ted) He goes on to mention that this
constitutional amendment might “irreparably damage the separation of powers
that has protected our constitutional freedoms throughout history...because
judges insulated from public pressure can best evaluate the claims of unpopular
minorities.” Kennedy is saying here that since Congress can be greatly
influenced by special interest groups, such as the Citizens’ Flag Alliance, it
is the responsibility of the judiciary branch of government to objectively rule
as to what is truly constitutional. If the Senate amends the Bill of Rights for
the first time in history by passing the Flag Protection Amendment, who knows
where they would stop. “Every nation in the world has a flag, and many of
them, including some democracies, have laws against desecrating their flag. No
other nation has a Bill of Rights” (Levy 219). The year 1991 marked the 200th
anniversary of its ratification, and, in my opinion, it requires no limiting
amendment. The American people understand that they are not threatened by flag
burners, and the American people prefer the First Amendment undiluted. They
understand that imprisoning a few extremists is not what patriotism is all
about; forced patriotism is surely not American. Rep. Gary Ackerman (D-New York)
expressed these ideas when he said, If a jerk burns a flag, America is not
threatened. If a jerk burns a flag, democracy is not under siege. If A jerk
burns a flag, freedom is not at risk and we are not threatened...we are
offended; and to change our Constitution because someone offends us is, in
itself, unconscionable. (Apel Chronology). Flag burning may be all wrong, but a
lot of wrongheaded speech is protected by the First Amendment. The Bill or
Rights is a wonderfully terse, eloquent, and effective summation of individual
freedoms, and there is no need to add “except for flag burners.” That
exception, as the Court majority in United States v. Eichman realized, might
show that the nation is so lacking in faith in itself that it permits the
Johnsons and Eichmans to diminish the flag’s meaning. They are best treated,
as Brennan argued, by saluting the flag that they burn or by ignoring them
contemptuously, not by paving the way for an assault on our constitutional
rights. In this research, I noted that all of the proponents for the Eichman
decision who were also against the Flag Protection Amendment used very logical,
well-structured arguments, while those dissenting and in support of the
“amendment to an amendment” use mostly emotional arguments and focus on the
respect owed to all those who have died in the military protecting the nation.
These in the latter group seem usually to be associated with the military
themselves (e.g. Major General Patrick H. Brady is the Board Chairman of the
Citizens’ Flag Alliance). I entirely agree with the Supreme Court’s ruling
in this case. Justice Stevens argued that flag-burning was not an acceptable
form of expression because people could convey their views by other means; he
seems to have failed to realize, however, that it is not the right of the
government to limit one to a certain means of voicing his or her opinions. Flag
burning is a form of protest which rarely occurs and which does little but
offend others. Perhaps a law such as the Flag Protection Act, while
unconstitutional, is permissible as a means of silencing organization such as
the CFA, but an amendment to our Bill of Rights if certainly going too far.

BibliographyApel, Warren S. “ACLU Action Report.” Online.
Apel, Warren S. “Chronology to Flag Burning.” Online.
Apel, Warren S. “The Flag Protection Act of 1989.” Online.
Apel, Warren S. “Hasbrouk Explains the Voting Procedure.” Online.
“Citizens’ Flag Alliance: Significant Campaign Events.” Online.
Downs, Donald A. “Eichman, United States v.” The Oxford Guide to United
States Supreme Court Decisions. New York: Oxford University Press, 1999: 83.
Downs, Donald A. “Texas v. Johnson.” The Oxford Companion to the Supreme
Court of the United States. New York: Oxford University Press, 1992: 868-869.
“House Panel Approves Flag-Burning Measure.” Congressional Quarterly Weekly
Report 17 May, 1997: 1444. Levy, Leonard W. “Flag Desecration.” Encyclopedia
of the American Constitution. New York: MacMillan Publishing Company, 1992:
217-220. Relin, David Oliver. “A Burning Question.” Scholastic Update 21
Sept, 1990: 16-19. “Supreme Court of the United States.” Online.
“Ted Kennedy.” Online.
“U.S. Supreme Court--United States v. Eichman.” Online.
Witt, Elden. “Protest and the Flag.” Congressional Quarterly’s Guide to
the Supreme Court. Washington D.C.: Congressional Quarterly Inc., 1990: 409.