"Has been a lifesaver so many times!"
- Catherine Rampell, student @ University of Washington
"Exactly the help I needed."
- Jennifer Hawes, student @ San Jose State
"The best place for brainstorming ideas."
- Michael Majchrowicz, student @ University of Kentucky
The issue of flag desecration has been and continues to be
a highlycontroversial issue; on the one side there are those who
believe that the flag is a unique symbol for our nation which
should be preserved at all costs, while on the other are those
who believe that flag burning is a form of free speech and that
any legislation designed to prevent this form of expression is
contrary to the ideals of the First Amendment to our
Constitution. Shawn Eichman, as well as the majority of the
United States Supreme Court, is in the latter of these groups.
Many citizens believe that the freedom of speech granted to them
in the First Amendment means that they can express themselves in
any manner they wish as long as their right of expression does
not infringe on the rights of others; others, however, believe
that there are exceptions to this right of speech.
Such constitutional issues need to be worked out by the
Supreme Court, which uses its powers of constitutional
interpretation and judicial review to outline the underpinnings
of the Constitution and interpret the law. The case which acted
as an impetus for Eichman’s actions was that of Texas v.
Johnson. “In 1984, in Dallas, Gregory Johnson, a member of the
Revolutionary Communist Youth Brigade, a Maoists society,
publicly burned a stolen American flag to protests the re-
nomination of Ronald Reagan as the Republican candidate” (Levy
217). The police consequently arrested Johnson not for his
message but for his manner in delivering it; he had violated a
Texas statute that prohibited the desecration of a venerated
object by acts that “the offender knows will seriously offend
one or more persons” (Downs 83).
Johnson had hoped to capture America’s attention with this
burning, and he did; however, his protest earned him more than a
moment in the national spotlight. “Under Texas’s tough anti-
flag-burning statute, Johnson was fine $2,000 and sentenced to a
year in prison” (Relin 16). In Texas v. Johnson a majority of
the Supreme Court considered for the first time whether the
First Amendment protects desecration of the United States flag
as a form of symbolic speech. A sharply divided Court had
previously dealt with symbolic speech cases that involved
alleged misuses of the flag. While “the Court had ruled in favor
of the defendants in those cases (Street v. New York, 1969;
Smith v. Goguen, 1974; Spence v. Washington, 1974), it had done
so on narrow grounds, refusing to confront the ultimate question
status of flag desecration” (Downs 868).
The court ruled in favor of Johnson (5-4), believing that
“there was no evidence that Johnson’s expression threatened an
imminent disturbance of the peace, and that the statute’s
protection of the integrity of the flag as a symbol was
improperly directed at the communicative message entailed in
flag burning” (Downs 868). Justice Brennan concluded
by saying, “We do not consecrate the flag by punishing it’s
desecration, for in doing so we dilute the freedom that this
cherished emblem represents” (Witt 409). Reacting to this
ruling, the Untied State’s Congress sought to pass legislation
that would overturn it.
The Flag Protection Amendment was introduced and then voted
down, but then the Flag Protection Act was passed in both
houses. President Bush allowed this act to pass without his
signature, “an expression of his preference for a Constitutional
amendment” (Apel “Flag Protection”). The Act criminalized the
conduct of anyone who “knowingly mutilates, defaces, physically
defiles, burns, maintains on the floor or ground, or tramples
upon” a United States flag, except conduct related to the
disposal of a “worn or soiled” flag (U.S.). On October 30th,
1989, the day the bill went into effect, hundreds of people
burned flags; among them was Shawn Eichman.
The Justice Department admitted that the law was
unconstitutional under Texas v. Johnson, but prosecuted anyways,
hoping to get the court to reverse its decision. The court
decided that “flag desecration is a form of political expression
that is protected under the First Amendment rights to free
speech,” and ruled in favor of Eichman by a vote of 5 to 4, thus
nullify the Flag Protection Act which Eichman had been
protesting (“House” 1144). The majority consisted of Justices
Brennan, Marshall, Blackmun, Scalia, and Kennedy. Dissenting
were Justices Stevens,
View Full Essay
Texas v. Johnson, Street v. New York, Flag desecration, First Amendment to the United States Constitution, John Paul Stevens, Flag of the United States, Flag Protection Act, Revolutionary Communist Youth Brigade, Freedom of speech in the United States, Flag Desecration Amendment, American Civil Liberties Union, United States Constitution
More Free Essays Like This