Which Supreme Court case decided whether a US citizen could burn the American flag?
|
President-elect Donald Trump believes those who burn the flag should be jailed. Is it legal to burn the American flag?
Editor's note: This story has been updated. Hey Texplainer: President-elect Donald Trump just tweeted that people who burn the U.S. flag should be jailed or lose their citizenship. What would happen if I burned a flag? President-elect Donald Trump tweeted Tuesday that those who burn the American flag should face consequences — “perhaps loss of citizenship or a year in jail!” But while many Americans may look down on burning the country’s flag, the U.S. Supreme Court ruled in a Texas case in 1989 that the burning of a U.S. flag was protected under the First Amendment. In Texas v. Johnson, the court ruled 5-4 that Gregory Lee Johnson's burning a U.S. flag outside of the 1984 Republican National Convention in Dallas was protected free expression. A Texas court had tried and convicted Johnson for the incident before Johnson appealed his case to the U.S. Supreme Court. During oral arguments, Dallas County Assistant District Attorney Kathi Alyce Drew testified that the American flag is "this nation's cherished property" and argued that "if a symbol over a period of time is ignored or abused that it can, in fact, lose its symbolic effect." But Conservative Justice Antonin Scalia, who ruled alongside the majority, disagreed. "His actions would have been useless unless the flag was a very good symbol for what he intended to show contempt for," Scalia said of Johnson's flag burning during oral arguments. "His action does not make it any less a symbol." A 1931 case before the high court set the first precedent that the way a flag is used can be protected under the First Amendment. In a 7-2 ruling, the court found a California law that banned the flying of red flags in protest of the government was unconstitutional. The red flag was viewed as a symbol of communism. Again in 1989, the court decided in Spence v. Washington that a person couldn’t be convicted for using tape to put a peace sign on an American flag. The decision paved the way for its historic decision in the Texas case later that year. Although the court has ruled that burning the flag is protected speech under the First Amendment, Trump’s feelings toward flag burning are not far from many politicians' views on the act. In 2005, then-Sen. Hillary Clinton co-sponsored the Flag Protection Act, which would have outlawed destroying or damaging a U.S. flag. The bill did not make it out of a Senate committee. Gov. Greg Abbott has made similar statements about flag burning – promising to pass a new law honoring the flag after the Texas Court of Criminal Appeals ruled last year that a state law that bans damaging the U.S. flag and the Texas flag was unconstitutional. "It came from Texas' highest criminal court," Abbott tweeted of the decision last year. "I think it is wrong. We will work to pass a revised law honoring the flag." Bottom line: The U.S. Supreme Court has ruled that burning the U.S. flag is protected under the First Amendment. Quality journalism doesn't come freePerhaps it goes without saying — but producing quality journalism isn't cheap. At a time when newsroom resources and revenue across the country are declining, The Texas Tribune remains committed to sustaining our mission: creating a more engaged and informed Texas with every story we cover, every event we convene and every newsletter we send. As a nonprofit newsroom, we rely on members to help keep our stories free and our events open to the public. Do you value our journalism? Show us with your support. Yes, I'll donate today Latest Texas Tribune events and articlesIt was shortly before the Fourth of July in 1989—two centuries after the Constitution of the United States took effect—when the Supreme Court declared that the government could not stop citizens from desecrating the nation’s flag. “The patriotic mind recoils,” TIME’s Walter Isaacson commented in the weeks that followed the decision. “Reverence for the flag is ingrained in every schoolchild who has quailed at the thought of letting it touch the ground, in every citizen moved by pictures of it being raised at Iwo Jima or planted on the moon, in every veteran who has ever heard taps played at the end of a Memorial Day parade, in every gold-star mother who treasures a neatly folded emblem of her family’s supreme sacrifice.” Yet, he continued, that was precisely the reason why the court, in the case Texas v. Johnson, declared that federal and state laws that protect the flag are in violation of free-speech protections. The flag is so revered because it represents the land of the free, and that freedom includes the ability to use or abuse that flag in protest. Almost immediately after the ruling was made, President Bush proposed a solution: a constitutional amendment that would exempt flag-desecration as protected speech. But the legislative branch struck first and passed the Flag Protection Act of 1989, which made it criminal to desecrate the flag, regardless of motive. Protesters responded quickly by burning flags, in an attempt to get the issue back to the Supreme Court. Almost exactly a year after Texas v. Johnson, their wish came true. In United States v. Eichman, which was decided exactly 25 years ago, on June 11, 1990, the Supreme Court once again ruled that burning the flag was an example of constitutionally protected free speech. Further attempts to protect the flag with an amendment were batted about in the years that followed, but they never went anywhere. As Isaacson pointed out in returning to the issue the week after the Eichman decision came down, the 1990s fight over flag-burning came at a time when the nation was seemingly less polarized:
Read the full story, here in the TIME Vault: Hiding in the Flag Write to Lily Rothman at . What Court case said it was legal to burn the American flag?This activity is based on the landmark Supreme Court case Texas v. Johnson, 491 U.S. 397 (1989), which deals with First Amendment protection of flag burning as symbolic speech.
Is it against the law to burn an American flag?Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.
What was the Supreme Court's decision in Texas v Johnson?Decision: The U.S. Supreme Court ruled in a 5-4 decision in favor of Johnson. The high court agreed that symbolic speech – no matter how offensive to some – is protected under the First Amendment. DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only.
Why was the law on burning an American flag struck down by the US Supreme Court as unconstitutional?Eichman (1990), the Court reviewed a Congressional statute that attempted to be neutral as to the messages that might be conveyed, prohibiting flag burning except when attempting the "disposal of a flag when it has become worn or soiled." The Court struck down this statute as another attempt to punish offensive ...
|
