U.S Constitutional Law
War on Flag Burning? Suppressing the Freedom of Speech or Standing up for a National Symbol
Shortly after Congress passes the Flag Protection Act of 1989; which incriminates the mutilation, defacing, burning and/or physically defiling of an American flag or any likeness of an American flag that is “commonly displayed”, Shawn Eichman with Gregory Lee Johnson, artist Scott Tyler, and Vietnam veteran David Blalock set a United States flag on fire on the steps of the U.S Capitol while protesting the government’s domestic and foreign policy. Subsequently, United States Attorneys prosecute Eichman in accordance with the statute, and since a previous, similar case ruling of Texas v. Johnson only affected Texan state laws, this case was set to serve as a test case. Federal district judges dismiss this case, citing Texas v. Johnson, then U.S Attorneys appeal to the Supreme Court. Again, similarly to the previous Texas v. Johnson case, on June 11th 1990, the Supreme Court’s holding stays at a 5-to-4 decision including Justices Brennan, Marshall, Blackmun, Scalia and Kennedy as concurring while Stevens, Rehnquist, White, O’Connor dissenting, the Court strikes down the law because “its asserted interest is related to the suppression of free expression and concerned with the content of such expression.”.
The Majority Opinion by William J. Brennan, Jr. states that in accordance with states, the Federal Government cannot incriminate a person for burning a U.S flag because doing so would be infringing the said person’s First Amendment rights. The Supreme Court illustrated that flag burning constitutes the very same expression that the First Amendment guaranteed one’s freedom to do, thereby allowing protection of the doer by the constitution. The concurring court mainly presses on the fact that the “Government's asserted interest in protecting the physical integrity of a privately owned flag” with the intent of “[preserving] the flag's status as a symbol of the Nation” is in fact suppression. The majority also declares that “mere destruction or disfigurement of a symbol's physical manifestation does not diminish or otherwise affect the symbol itself.”. The dissenting court essentially states the need to look at the circumstance in which the flag was burned and the logic behind it: such as during a time of war, or during a protest against a government action. As the concurring and dissenting courts have respectively concluded, it is both important to respect the freedom of expression embodied in the First Amendment and, be aware of the situation in which such an act of burning the flag as a symbol takes place. But then again, one cannot limit an action such as burning a national flag to ‘expression’ or ‘situation’, the very use of a national flag and the knowledge of what the symbol carries goes to show that those who burn it surpass what we define as ‘expression’ but instead use it as a method to incite violence, defeat nationalism, grab...