With the ideological battles at home in abeyance and challenges from abroad less severe, it would seem that the nation would feel more secure about the glorious discomforts that come from tolerating forms of free speech - even when they are as offensive as the antics of flag burners or the lyrics of 2 Live Crew or the photographs of Robert Mapplethorpe.
Now the issue has become, so to speak, less burning. Even in those incendiary times, there was never a serious effort to pass a constitutional amendment. In the 1960s the battle between flag wavers and flag burners represented a traumatic schism over the Vietnam War and national morality in general. Paradoxically, the willingness to scale back First Amendment permissiveness comes when the divisions in American society seem to be at a 25-year low. Eichman, which was decided exactly 25 years ago, on June 11, 1990, the Supreme Court once again ruled that burning the flag was an example of constitutionally protected free speech.įurther attempts to protect the flag with an amendment were batted about in the years that followed, but they never went anywhere.Īs Isaacson pointed out in returning to the issue the week after the Eichman decision came down, the 1990s fight over flag-burning came at a time when the nation was seemingly less polarized: No, the Supreme Court of the United States has ruled that burning the American flag is a form of expression protected by the First Amendment. Protesters responded quickly by burning flags, in an attempt to get the issue back to the Supreme Court. You can criticize and belittle Trump but if you said that about Obama you would be called 'racist' you can have B.E. But the legislative branch struck first and passed the Flag Protection Act of 1989, which made it criminal to desecrate the flag, regardless of motive. You can burn the flag but its hate speech to burn a rainbow flag.
The flag is so revered because it represents the land of the free, and that freedom includes the ability to use or abuse that flag in protest.Īlmost immediately after the ruling was made, President Bush proposed a solution: a constitutional amendment that would exempt flag-desecration as protected speech. Johnson, declared that federal and state laws that protect the flag are in violation of free-speech protections. Eichman (1990), the Supreme Court voted 5-4 to protect the right to burn the American flag as a form of symbolic speech. Yet, he continued, that was precisely the reason why the court, in the case Texas v. But punishing an expressive act like flag burning would do more damage to the flag than any lighter fluid ever could.