Because the American flag is arguably the most sacred U.S. symbol, flag desecration remains one of the nation’s most controversial and polarizing issues. Several times during the 20th century, the Supreme Court handed down decisions on flag desecration. In 48 states, it is currently a crime.

Concerns about the flag generally fall into three distinct periods. In the years prior to and during World War I, states began to adopt flag desecration laws. The World War II era saw many states adopting flag-salute laws. In the years since the Vietnam War, Congress and the Supreme Court have once again been grappling with the issue.

The first Supreme Court case dealing with flag desecration was Halter v. Nebraska (1907). Affirming that state governments had the authority to ban desecration of the flag, the Court unanimously upheld the conviction of a company that had printed the American flag on a beer bottle. Writing the opinion for the Court, Justice John Marshall Harlan I stated: “To every true American the flag is the symbol of the Nation’s power, the emblem of freedom in its truest, best sense.”

Flag-desecration convictions reversed

In 1966, after hearing that civil rights leader James Meredith had been shot in Mississippi, Sidney Street took his own flag into the street in New York City and set it on fire. To those passing by he said, “If they can do this to James Meredith, we don’t need a flag.” Street was fined $100, but the fine was promptly suspended.

As a matter of principle, he filed suit, and when Street v. New York (1969) reached the Supreme Court, the Court, in a 5-4 vote, reversed the conviction, stating that Street could not be punished for speaking defiantly or with contemptuous words about the flag. The Court did not decide whether it would have been constitutional to convict Street for actually burning the flag, because it could not separate this issue from the words he uttered.

Five years later in Spence v. Washington (1974), the Court reversed the conviction of a college student in a Washington state case who hung a flag upside down with a peace symbol, made of removable tape, attached. The student was prosecuted under an improper-use statute. The Court ruled that this symbolic speech was protected against government interference.

The late 1980s and early 1990s brought a flurry of action on flag desecration.

Flag-burning held to be protected expression

During the Republican National Convention in Dallas in 1984, Gregory Lee Johnson participated in a political demonstration in front of Dallas City Hall. During the demonstration, he doused an American flag with kerosene and set it on fire. While the flag was burning, protesters chanted “America the red, white, and blue, we spit on you.”

Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. In Texas v. Johnson (1989), the Supreme Court held 5-4 that Johnson’s burning of the flag was protected expression under the First Amendment.

President George H. W. Bush and members of Congress were outraged at the Court’s decision. The Senate passed a resolution 97-3 expressing profound disappointment that the Court had protected this reprehensible conduct, and both houses of Congress held hearings to consider statutory and constitutional responses to the Court’s ruling.

In 1989 Congress adopted the Flag Protection Act. Once the law took effect, protesters burned American flags in Seattle and Washington, D.C., protesting the act as well as the government’s foreign and domestic policies. 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 (1990), the Court, once again by a 5-4 vote, held that burning the flag was allowable expressive conduct. As in Texas v. Johnson, the majority opinion affirmed that “[i]f 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 itself offensive or disagreeable.”

Constitutional amendments fail

After the decision in Eichman, Congress once again considered a proposed constitutional amendment to protect the American flag. In every Congress since 1995, 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 2006; the amendment passed the House by a vote of 286-130, but failed by one vote, 66-34, 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. Opponents fear ratification of an amendment that would be the first to modify the protections of the First Amendment.

With such continuing close votes, the issue is likely to remain controversial in the near future.

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