Republicans regularly introduce proposals to amend the Constitution to permit government bans on flag burning or desecration. In the past, they introduced laws to ban flag burning, but the laws were always struck down as unconstitutional. These measures are intended as political footballs: almost always introduced in election years, they exist to give Republicans an easy way to attack the patriotism of Democrats who refuse to undermine freedom of speech.
Conservatives have used the flag — as both an object and symbol — in this manner for years. It probably began during the 1988 presidential campaign when Republican candidate Bush discovered that Democratic candidate Dukakis was vulnerable to charges of being anti-patriotic and anti-flag: as Massachusetts governor, Dukakis vetoed a bill requiring public school teachers to lead classes in the Pledge of Allegiance.
Some teachers objected on religious grounds and Dukakis’ advisors correctly informed him that the teachers had a solid constitutional case. This explanation was not very moving in election speeches, however, while the image of Vice President Bush leading crowds in reciting the Pledge was immediate, dramatic, and packed with emotion.
For conservatives, forcing religious dissenters to lead school children (who might also be religious dissenters) in reciting the Pledge was a minor price pay for validating their vision of “true” patriotism. This was just an early example of Christian Nationalists trying to use the law to simultaneously validate their cultural norms while repressing the cultural values of minority groups.
Texas v. Johnson
Why do Republicans believe that it is necessary to change the Constitution so the state can suppress expressive acts? The first step was the 1989 Supreme Court decision in Texas v. Johnson. During the 1984 Republican convention in Dallas, Texas, Gregory Lee (Joey) Johnson soaked an American flag in kerosene and burned it in front of the convention building while protesting the polices of Ronald Reagan’s administration.
Johnson was arrested and convicted under a Texas law prohibiting anyone from “intentionally or knowingly” desecrating a state or national flag. Sentenced to one year in jail and fined two thousand dollars, he appealed his conviction to the United States Supreme Court where Texas argued that it had a right to protect the flag as a symbol of national unity.
The justices ruled 5 to 4 against Texas and in favor of Johnson because the law included the provision that the desecration be illegal if “the actor knows [that the desecration] will seriously offend one or more persons.” The court saw that the state’s attempt to preserve the symbol was intimately tied up with an attempt to suppress certain messages, something which the government has no authority to do.
Read More: Texas v. Johnson
Flag Protection Act, United States v. Eichman
Reaction to the Texas v. Johnson decision was swift and hostile. Within months, Congress passed the Flag Protection Act of 1989, legislatively challenging the Court’s decision by prohibiting the desecration of the American flag. Two appellate cases, each involving people prosecuted for and convicted of burning an American flag, were consolidated into the case United States v. Eichman.
The government argued that the FPA was directed against all forms of flag mistreatment irrespective of the message being conveyed and hence bypassed Texas v. Johnson. The Court disagreed, finding that “...it is nevertheless clear that the Government’s asserted interest is ‘related to the suppression of free expression.’” The decision further indicated that any attempt to prohibit the desecration of flags would be viewed suspiciously by the Court as a further attempt to limit free speech.
Read More: United States v. Eichman
Amending the Constitution
All legislative efforts to ban flag burning and desecration have failed and the courts have made it clear that further efforts would almost certainly fail because offensive as well as popular uses of the flag would be treated as a form of speech, protected by the Constitution. This has led conservative Republicans and Christian Nationalists to conclude that the Constitution itself must be changed. In taking this course, they essentially acknowledge that their purpose is to use the government to suppress particular messages and expressions which they don’t like.
It has occurred far too often in America’s history that politically unpopular speech has been suppressed — strong free speech protections are relatively recent in origin. This would thus not be the first time that a majority could suppress the speech of a minority, but it is the first time that an exception to the First Amendment would be carved out in the Constitution.
