Is Flag-Burning Constitutionally Protected?

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The United States is well-known for its principles of freedom and democracy, which is demonstrated through the First Amendment’s Free Speech Clause. Thus, American citizens can openly discuss political matters; criticize the President and his Cabinet on television, radio talk show or in the newspaper; or publicly protest against the government tax policy. However, Free Speech protection becomes debatable when some American citizens burn the nation’s flag to express their disagreement to the government. The act of burning the American Flag should be constitutionally protected under the First Amendment’s Free Speech Clause because the act is a symbolic expression that communicates an individual’s idea or opinion about his nation; and that the First Amendment’s Free Speech Clause covers and protects symbolic expression. I. First Amendment’s Free Speech Clause and Texas v. Johnson (1989) a) First Amendment’s Free Speech Clause

The First Amendment was written in the Constitution in 1791, which listed basic civil liberties, rights that the government cannot take away from an individual, including free establishment and exercise of religion, freedom of speech, of the press, assembly and petition. The Free Speech Clause was added to the First Amendment in 1789 by James Madison, which stated that “Congress shall make no law….abridging freedom of speech”. Freedom of speech allows an individual to openly voice his opinions without fear of government’s censorship and is seen as a privilege to most Americans, which set them apart from other nations. However freedom of speech is not absolute. The word “abridging” in the Free Speech Clause suggests that government cannot deprive the right to freedom of speech; but at the same time the suggestion is unclear about whether the government can put restrictions on how “free” the speech can be. Most people when mention the word “speech”, usually have the tendency to think of spoken words and often neglect the existence of expressions, which is clearly a form of communication that people use to express their opinions. Thus their common argument is that Free Speech Clause is limited to literally “speech”, not expressions. However, according to the Supreme Court’ rules, both verbal and non-verbal expressions are protected under the Free Speech Clause as long as they are not fighting words, libel, slander or defamation. Issues arise when freedom of speech conflicts with society’s belief and value. Some people view the act of burning the American Flag as an individual’s disagreement with the nation, yet others consider it an illegal behavior of an extremist. In 2003, more than ten years after Texas v. Johnson, people still made various attempts to amend the First Amendment’s Free Speech Clause, which would outlaw flag desecration. b) Texas v. Johnson (1989)

Texas v. Johnson (1989) is the landmark case that creates most controversies over the realm of protection of the First Amendment’s Free Speech Clause. Johnson set the American flag on fire while protesting with other demonstrators during the Republican National Convention in Dallas in 1984. The Supreme Court’s decision was that Texas’s Flag Desecration law was unconstitutional and Johnson was protected under First Amendment’s Free Speech Clause. Justice Stevens and Rehnquist argued that the act was “evil, profoundly offensive” and did not “express any particular idea, but to antagonize others” and that; even if the act was legal, the flag itself was “unique” and honorable enough to make all rules inapplicable. The first half of the justice’s argument lacks consideration of the neutrality concept that the First Amendment embodies, and thus creates bias in favor of the speech it likes. Besides, it is difficult to judge whether the act conveys a political message or not for every speech, verbal or symbolic, has its political aspect. The second half of this argument takes the idea of “symbol” to the extreme that it misses the most...
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