Desecrate the American Flag? Free Speech or Offensive?

50 star US flag

“The Congress and the states shall have power to prohibit the physical desecration of the flag of the United States”

For the amendment:

In his dissenting opinion in Texas v. Johnson, the late Chief Justice William H. Rehnquist wrote,

The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another “idea” or “point of view” competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

Against the amendment:

In the majority opinion in Texas v. Johnson, Justice William J. Brennan wrote: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

Texas v. Johnson was the case of a protestor at the Republican Convention of 1984 burning the flag in protest. Gregory Lee Johnson was arrested for the physical burning of the US flag in a protest. He was fined and jailed for one year. He appealed and eventually the case ended at the US Surpreme Court where his arrest was declared unconstitutional.

Each Congress thereafter, the US House passed a Constitutional Amendment to ban the desecration, particularly burning the American flag in protest. The Senate has never agreed and the constitutional amendment has never passed the Congress.

One of the main points of those opposing the constitutional amendment is the definition of a ‘flag.’ Exactly what is a flag? If it is only a piece of colored cloth suspended from a stationery object, free to move in the wind on one end, then it is possible to restrict its specific use. However, if the national flag is representated in any other form that appears to be similar in design to the protected flag, does this constitute the national flag, too? If so, can these representations also be regulated? For example, can the flag design be sacred and protected if it appears on a patch, in a newspaper, on a postage stamp, in a magazine, on a water tower? In all these examples, wear and tear would desecrate the flag design.

However, if it is necessary to protect the national flag, then its design must be restricted as to its form and its use. The government must decide how the flag is to be manufactured, how it is purchased, and regulated as to how it is used by its citizens in order to preserve the sanctity of the our national symbol.

As a member of Congress, would you support or oppose an amendment to the Constitution to ban desecration of the Flag of the United States?

Does an amendment affect the collectibility of the American flag?

How do stickers, patches, newspaper depictions, stamps, clothing, etched glass, affect a Constitutional Amendment against the desecration of the American flag?

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