Flag Burning and the Constitution

Political Culture, Flag Use and Freedom of Speech

“…98–107). This finding rested on what had by this time become a ‘bedrock principle’ of the First Amendment, 18 namely that government may not restrict an expression ‘simply because society finds the idea itself offensive or disagreeable’ 19 (Dry, 1990, p. 82; Heyman, 2008, p. 123; Stone, 1990, p. 4). Since 1989 flag desecration laws that seek to restrict freedom of speech by punishing behaviour that uses the national flag as a medium for expressing a political opinion have continued to be impermissible in the United States in accordance with First Amendment doctrine.…”

“…The ruling overturned the prosecution of a protestor for burning a flag at a protest outside the Republican National Convention. He had been prosecuted under a Texas statute that prohibited desecration of venerated objects in a way that will offend others (Dry, 1990, p. 81). The Supreme Court differentiated the law restricting flag burning in this case from the law preventing the burning of a draft card in O'Brien .…”

“…The Supreme Court therefore ruled that the First Amendment prohibited the establishment of a law that punished using the flag as a way of expressing political opinion (Dry, 1990, p. 82; Goldstein, 2000, pp. 98–107).…”

“…Following the prosecution of several of them, the Supreme Court subsequently held the Flag Protection Act to be unconstitutional on First Amendment grounds 25 . This in turn led to renewed calls by the president and others for a constitutional amendment to protect the flag (Dry, 1990, pp. 92–8; Goldstein, 2000, pp.…”

“…These were at times held invalid when constitutionally challenged on the basis that they violated property rights, but at others upheld as valid. In 1907 in Halter v. Nebraska , 13 the Supreme Court upheld the validity of a flag desecration law in a judgment likening protection of the flag to protection of national honour (Dry, 1990, p. 73; Goldstein, 2000, pp. 20–1).…”