22nd Annual Bill of Rights
Art and Essay Contest, 2005-2006

TOPIC:  Should the Constitution be amended
so that Congress can ban flag desecration?

1st Prize, High School

by a 12th-grade Pacific Grove High School student

Should the Constitution Be Amended so that Congress Can Ban Flag Desecration?"

As a result of the terrorist attacks of September 11th, 2001, and the subsequent War on Terrorism, a controversy has emerged regarding flag burning as a form of political expression. Some argue that an amendment should be added to the Constitution of the United States allowing Congress to ban flag desecration. However, such a drastic and unprecedented change in the Constitution should be carefully considered. Historically, the Supreme Court has ruled in a number of cases that flag burning is a form of expression and therefore protected under the First Amendment. Illegalizing flag burning and creating an exception to the First Amendment would also open up a dangerous "can of worms." What exactly would define "flag desecration"? Could Congress ban other offensive forms of expression? Ultimately, freedom of speech was designed to protect unpopular or controversial expression, and the best way to fight an expression of ideals that one finds offensive is not through punishment, but through an expression of one's own opposing ideals.

When the World Trade Centers were attacked in September of 2001, a wave of patriotism swept the country. An, as young men and women were deployed to Iraq to fight in the War on Terror, sensitivity to criticism of the government and its policies increased. To many, flag burning is the ultimate scorn of one's government and country. Opponents of flag burning argue that it is an unnecessary and deeply offensive action, likely to provoke breaches of the peace. They believe that the flag is a special symbol of our nation and its history, and thus deserves special consideration and protection

In the past, the Supreme Court has consistently ruled that flag burning is a form of political expression protected under the First Amendment. The Court narrowly avoided directly addressing the question of the constitutionality of laws banning flag desecration in Street v. New York, where the offender's conviction was overturned on the basis that he had been convicted because of his words. However, the Court tackled the controversial issue in Texas v. Johnson, and a state's right to punish flag burning as a criminal, act was denied by a vote of five to four. During the time of the case, forty-eight of the fifty states had laws banning flag desecration. Most recently, the Supreme Court has declared Congress's Flag Protection Act to be unconstitutional in U.S. v. Eichmann 496. Thus, even in the face of opposing popular sentiment, the Court has upheld the legality of flag burning as expressive conduct. If an amendment were to be added allowing Congress to ban flag desecration, it would both go against traditional Supreme Court rulings on the matter and be the only exception to freedom of speech ever to be added to the Constitution.

This possibility of such an unprecedented restriction on a person's basic liberties opens a dangerous "can of worms." Conduct that could be considered flag desecration would have to be outlined and defined in detail, and could range from activities such as burning a flag to tearing up a picture of the flag to printing a flag on an item of clothing. The severity of the punishments for various instances of flag desecration would also have to be considered. However, the most frightening aspect of such a restriction would be the precedent that it sets. Once the government attains the ability to restrict freedom of speech and to punish unpopular and offensive expression, a "territory having no discernible or defensible boundaries" (Brennan, Texas v. Johnson) will have been entered. Under such logic as that which motivated the movement to ban flag desecration, the government could implement restrictions on a number of different freedoms and forms of expression

In addition, the fact that the flag is such a widely recognized symbol, representing our country as much as the word "America" itself, makes it a perfect tool for political expression. It is true that political expression in the form of flag burning is often controversial and provokes strong opinions from all observers. However, this is precisely the type of expression that freedom of speech was designed to protect. And, contrary to popular belief, the act of flag burning does not make a person unpatriotic. In fact, may of the veterans for whom the flag holds a special meaning and sacredness oppose restrictions on flag burning. One veteran argued that since burning a flag is deemed acceptable in certain situations (such as memorials) but not in others (such as protests), a ban on flag desecration would punish people for the feelings and opinions behind the act rather than for the act itself. Flag burning merely represents a dissatisfaction with and protest of certain governmental actions or policies. Such questioning of the government is an essential part of a democracy, for it forces the government to be held accountable for its actions and keeps it working in the interests of the people

Finally, in the words of Justice Brennan during the Texas v. Johnson case, "The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade the that the are wrong." While an amendment could allow Congress to punish the act of burning a flag, it could not take away the feelings behind flag burning. A person may not be able to express his or her dissatisfaction with governmental policies or actions, but he or she will still possess such dissatisfaction. Essentially, if one is offended by another's apparent lack of patriotism or scorning of the government, punishing the offender will not solve the problem. Issues such as this can only be solved through persuasion, logical argument, and other uses of one's own freedom of expression. Individuals may condemn flag burning, however the Constitution should not.