Desecration Of The Flag Essay

On Tuesday, Trump added fuel to the debate with a provoking message on Twitter: “Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!” Flag burning, as we’ve discussed in detail on this blog and at the National Constitution, is a legal debate that goes back decades, and in the minds of the Supreme Court, has been settled since 1990.

President-elect Donald Trump's recent comments about prosecuting flag-burning protesters has started yet another debate about the issue.In the majority were Justices William Brennan (who wrote both majority decisions), Anthony Kennedy, Thurgood Marshall, Harry Blackmun and Antonin Scalia.The dissenters were Chief Justice William Rehnquist, John Paul Stevens, Byron White and Sandra Day O’Connor.During and in the decade following the Vietnam War, flag burning of American flags by American citizens in public protest became a near-celebrated thing, as plaintiff Gregory Johnson successfully defended a right before the Supreme Court to go unpenalized for such behavior (Texas v. A newfound right to freedom of expression (rather than speech) was suddenly found by a closely divided Court (5-4) within the hidden corners of the Constitution.Fast forward thirty-plus years, and others burning the American flag in the wake of Trump’s election to the presidency are reprising the role of Johnson among others —then protesting the election of Ronald Reagan.“The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment.Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions.But in 1984, when Johnson stole and burned a flag, it was within the context of 48 out of 50 states plus federal statute forbidding it.Then, writing for the five-justice majority, Justice William Brennan wrote that Texas had punished Johnson for exercising the “freedom that [the flag’s] cherished emblem represents,” meaning that by preventing Johnson from expressing a political inclination through arson, it was Texas, not Johnson, who committed an offense against the flag.Arrests were made at protests in Seattle and Washington, D.C., but federal judges dismissed the charges based on the in May 1990 – with the same outcome.

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