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

for Students in Grades 7 through 12

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

THE CONSTITUTIONAL PRINCIPLES:

Freedom of Speech: The First Amendment to the United States Constitution says: Congress shall make no law ... abridging the freedom of speech..."

THE QUESTION:

Since the Supreme Court has ruled that burning the United States flag is a form of speech protected by the First Amendment to the Constitution, should the Constitution be amended to allow Congress to make a law prohibiting flag desecration, including burning the flag?

BACKGROUND:

The United States Supreme Court decided in 1989 that burning the United States flag during a political protest is expressive conduct protected by the right to freedom of speech under the First Amendment to the Constitution. The Court stated in Texas v. Johnson 491 U.S. 397: "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." This ruling was consistent with earlier cases dating back to 1969 when the Supreme Court overturned the conviction of a World War II veteran who burned a flag in protest during the civil rights movement in Street v. New York 394 U.S. 576. After these decisions the U.S. Congress passed the Flag Protection Act to punish anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any U.S. flag...". But in U.S. v. Eichmann 496 U.S. 310 (1990) the Supreme Court struck down the Flag Protection Act on grounds that it violated the First Amendment right to freedom of speech.

In reaction, there have been several proposals to amend the Constitution to allow Congress to ban desecration of the flag. A two-thirds majority of those present in both the Senate and the House of Representatives must vote "yes" for any amendment to the Constitution. Three-quarters of the states must then vote to ratify that amendment. In 2005 the House of Representatives passed Joint Resolution H.J. Res. 10 proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag. The proposed amendment states, "The Congress shall have the power to prohibit the physical desecration of the flag of the United States." That resolution is now before the United States Senate as S.J. Res. 12. The Senate has not yet voted on it.

Those in favor of amending the Constitution to prohibit flag desecration say that preserving the flag as a symbol of national unity justifies creating an exception to the First Amendment right to freedom of speech. They also say that a flag desecration law would prevent breaches of the peace.

Those opposed to amending the Constitution say that the amendment injures the very freedoms that the flag symbolizes, especially freedom of speech, and that freedom of expression must protect all forms of dissent no matter how unpopular. They also say that amending the Constitution would lead to larger problems of defining what is a "flag" and what does "physical desecration" mean. For example, would the law apply to shredding a picture of a flag? Or would sewing the flag to the seat of one's pants be "desecration"?

What do you think?  Should the Constitution be amended to allow Congress to prohibit desecration of the United States flag?

For more information, see the ACLU websites at:

• www.aclu.org
• www.acluNC.org
• www.acluMontereyCounty.org

For Cases and Statutes and the Joint Resolutions see:

• www.findlaw.com
• www.supremecourtus.gov/opinions/opinions.html