Flag Burning and the First Amendment Megan M. Kalbfleisch Grantham University Flag Burning and the First Amendment One golden rule of the First Amendment would be that the United States government cannot ban free expression of any idea. It doesn’t matter how much the majority disagrees with that idea or finds it offensive. Which is why American flag burning is protected under the First Amendment, it’s an expression of an idea. Texas v. Johnson. In 1989 a landmark case involving flag burning, Texas v. Johnson, Greg Lee Johnson, protesting the Reagan administration’s policies, burned the American flag in front of a city hall in Dallas, Tx (Oyez.org, 1989). It was held that to burn the American flag was in fact protected under the First Amendment, it was an expressive act. Burning of the American flag is still considered to be a form of speech by expressing an idea that is protected under the First Amendment. The law continues to be upheld even though so many find it offensive and despite efforts to criminalize the desecration of the American flag. Halter v. Nebraska. The controversy of desecrating the flag is not new to the courts, it has been a battle that goes back to the early 1900’s with Halter v. Nebraska. Which was a case not necessarily a flag burning but was a landmark case that lead the way to the Federal Flag Desecration Law. Two businessmen were barred from selling their beer with the American Flag on their bottles (NCC Staff, 2018). In 1968, The United States Congress passed the Federal Flag Desecration Law. The law was passed after a protest to the Vietnam War. This new law made it illegal to knowingly cast contempt on any flag that represents the United States by trampling on it, burning it, mutilating it publicly, defacing it, or defiling the flag (NCC Staff, 2018). Spence v. Washington. In 1974 another desecration case, Spence v. Washington. Harold Spence used tape to make a peace sign on an American flag that he displayed outside of his home in Seattle, WA. Spence was arrested and convicted for displaying the American flag with the symbol adhered to it, even though he offered to take it down when approached by law enforcement, a violation under a Washington statute. Supreme Court rejected the argument that the Washington Statute violated Spence’s First Amendment (Oyez.org, 1974). Overturned. Because of Johnson’s case in 1984 both the case in Washington and the case in Nebraska the convictions were overturned. Congress has been placed in many situations where making a decision that does not necessarily fit within their principles.
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