To Salute or to Burn: The Battle over Flag Desecration Did Not End with Texas v. Johnson

This legal question precipitates spirited debate in the 2016 election cycle, so how should we think about flag desecration?
By Jeremy Clement
“You are a fucking scumbag traitor piece of fucking trash.” In Missouri Donald Trump supporters shout at flag stomping Anti-Trump protesters. Violence erupts as more than 200 people take part in a standoff at the very same Trump rally. Another rally in Wisconsin includes members of the “Fuck Your Flag Tour” protesting against racial discrimination while stomping on an American flag.
Flag desecration and, in particular, flag burning are not new phenomena. The emotional contention over the issue during the Vietnam War era and the following decades is a testament to this. While the act of flag desecration has been declared legal and a legitimate form of free speech by the United States Supreme Court; controversy and emotions are building over the issue again. The views of our potential presidential candidates on this sensitive issue may be worthy of more discussion given the huge impact on our society another era division over this issue would cause. While the flag desecration issue may seem menial, it is representative of a much larger divide in the United States. This is a divide between those who view the flag as a symbol of freedom and sacrifice, and those who view the flag as symbolic of a broken system. If this toxic issue is approached the wrong way during this political climate, it could ignite more division and even violence.
History
In 1984 a man named Gregory Lee Johnson protested the policies of Ronald Reagan by burning an American flag outside of the Republican National Convention in Dallas. His conviction for the act was brought to the Supreme Court. In Texas v. Johnson (491 U.S. 397), the Court decided that “flag burning constitutes a form of ‘symbolic speech’ that is protected by the First Amendment.” The ruling was the first to protect flag desecration on the basis of freedom of speech. Writing for the dissent, Justice Stevens countered that the government had a state interest in limiting the right to desecrate the flag due to the flag’s unique status in the United States.
When congress tried to circumvent the Johnson ruling with the passage of the Flag Protection Act the decision was upheld in United States v. Eichman (496 U.S. 310). After this ruling there were various attempts to work around the decision by congressional statute and state laws; there were also attempts to overrule the ruling through a constitutional amendment.
Current Presidential Candidates
The most recent political battle over this issue was in 2005 and 2006 with a flag desecration bill (in 2005) and constitutional amendment (in 2006) introduced in Congress. The Flag Protection Act of 2005 was cosponsored by Hillary Clinton. This piece of legislation was different from past bills in that it sought to punish flag desecration only if it were to incite violence. The New York Times describes the bill as, “attempt[ing] to equate flag-burning with cross-burning, which the Supreme Court, in a sensible and carefully considered 2003 decision, said could be prosecuted under certain circumstances as a violation of civil rights law.” This position on flag desecration was a middle ground between those who want to keep flag desecration legalized and those who wish to completely forbid it under all circumstances regardless of consequences or content. On the 2006 Amendment, both Democratic candidates, Sanders and Clinton, voted no due to its lack of clarity and broad nature. However, Clinton did endorse a counter measure similar to her 2005 bill to replace the 2006 Amendment.
Relevance
With flag desecration contention and events becoming more frequent in this present election, the votes of the past could become more relevant than the candidates might believe. Donald Trump has stated that he believes that flag desecration should be illegal and events at his rallies have shown that violence can result when people on the opposing ends of this opinion confront each other. The candidates may need to confront this issue head on at some point in the future.
The most dangerous part of this issue aside from the violence is the near 50/50 divide among the public. A Gallup poll asked for the public’s opinion on the issue in 2006 while the Flag Desecration Amendment was being discussed. The poll asked two questions, one that gave little information about the issue and the other that was more specific. Both polls hovered around a 50/50 divide. With the public so sharply divided on the issue, any resulting conflict would be hard to resolve. Even more difficult would be to amend the Constitution in favor of those rallying against flag desecration.
This particular election has seen an unusual degree of polarization. Americans have seen what they perceive to be their own American values questioned. The foundation of the system of our democracy and electoral system has been questioned by Trump and Sanders through criticisms of the nomination process. Sanders has brought an economic ideology to the table that many Americans are uncomfortable with in the form of Democratic Socialism. Donald Trump has also touched nerves with his comments on race, women, and immigration. These clashes of values are extremely volatile. The question of flag desecration is even more toxic in this environment as America is redefining its image. The American flag does not stand for the same principles for everyone anymore and this polarization of values makes this a nasty time for such a dangerous discussion.
All views expressed are solely those of the author, and do not necessarily reflect the views of the World Mind or of Clocks and Clouds.
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