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(DV) Gerard: The Flag Should Not Infringe on the First Amendment







The Flag Should Not Infringe on the First Amendment
by Gene C. Gerard
August 22, 2005

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When the Senate returns from its summer break next month it will consider a constitutional amendment to ban desecrating the flag. In June the House of Representatives, in a vote of 286 to 130, passed a resolution that would create a new amendment to the Constitution allowing, “The Congress shall have the power to prohibit the physical desecration of the flag of the United States.” This is the sixth time since 1990 that the House has approved a flag desecration amendment to the Constitution, only to have the Senate reject it or simply fail to vote on it.

Efforts to protect the flag, at the expense of the First Amendment right to free speech and expression, have been a common occurrence during wartime. In the Civil War, when Union military commanders took control of Confederate areas they would prohibit the desecration of the flag. In 1862 New Orleans became the first Confederate city to be occupied by Union forces. General Benjamin Butler was commander of the Union army for southern Louisiana. He issued an order that no flag other than the national flag could be displayed, and that “the American [flag] be treated with the utmost deference and respect by all persons, under pain of severe punishment.”

William Mumford tested this order when he removed the flag atop the New Orleans branch of the U.S. Mint. He dragged the flag through the streets before tearing it into pieces and handing it out to his fellow Confederates. General Butler had him arrested and subsequently hanged for his act of desecration.

Congress twice violated the First Amendment while attempting to protect the flag during World War I. In 1917 Congress passed a law making it a misdemeanor to publicly desecrate the flag in the nation’s capital. A year later, Congress passed a law requiring the termination of any federal employee who “when the United States is at war…in an abusive or violent manner criticizes…the flag of the United States.” Many state legislatures also passed flag desecration laws.

The Kansas Supreme Court ruled in 1918 that insulting the flag was a crime. Montana passed one of the strictest flag desecration laws during World War I. Over 200 residents of Montana were convicted of disrespecting the flag during the course of the war. E.V. Starr, after refusing to kiss the flag as a sign of his patriotism, was convicted and sentenced to ten years of hard labor.

Congress passed the first flag desecration law during the Vietnam War, in the wake of anti-war demonstrations. In 1968 Congress passed the Federal Flag Desecration Law that criminalized anyone who “knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it.” Shortly thereafter, Sydney Street burned a flag after learning that a prominent civil rights activist had been shot. Street told the crowd who gathered around him as the flag burned that “…we don’t need no [expletive] flag.” He was arrested and convicted under the new law.

A year later the Supreme Court overturned his conviction in the case of Street v. New York. The Court didn’t specifically address Street’s burning of the flag. However, it ruled that his verbal comments were protected under the First Amendment right to free speech.

The Supreme Court finally addressed constitutional issues concerning burning the flag in 1989. In the case of Texas v. Johnson, the Court ruled on a Texas law that criminalized the mistreatment of the flag, to include setting it on fire. The Supreme Court upheld a Texas Court of Criminal Appeals ruling that the law was unconstitutional. This effectively defined burning the flag as a protected form of free speech.

Many members of Congress were offended by this ruling and later that year passed the Flag Protection Act. The legislation made a criminal out of anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any U.S. flag.” The Supreme Court responded to the new law in 1990 in the case of U.S. v. Eichman. In a five to four ruling the Court found that the act violated the First Amendment right to free speech and expression.

The current effort by Congress to pass a flag desecration amendment is largely attributable to the war in Iraq. Supporters hope that at least 67 Senators, the two-thirds majority needed to forward the amendment to the states for ratification, will be too fearful to vote against it and run the risk of being labeled “unpatriotic.” Or worse yet, “un-American.” But the Senate should reject it.

The flag represents all that is great about America. It symbolizes our rights and freedoms. As such, it should be treated with respect. But it is merely a symbol. To outlaw the right to free speech and expression, especially regarding desecration of the flag, would be a mockery of everything the flag stands for.

Gene C. Gerard teaches American history at a small college in suburban Dallas, and is a contributing author to the forthcoming book Americana at War. His previous articles have appeared in Dissident Voice, Political Affairs Magazine, The Free Press, Intervention Magazine, The Modern Tribune, and The Palestine Chronicle. He can be reached at

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