A Brief History
of Flag Burning
"The words of the first amendment are simple and majestic: `Congress shall make no law abridging freedom of speech.` The proposed constitutional amendment would undermine that fundamental liberty."
- Senator Ted Kennedy
In 1989, the U.S. Supreme Court decided in favor of the rights of Gregory Johnson, who had been convicted of violating a Texas law by burning a U.S. Flag. In response to this and a similar 1990 Supreme Court decision, the U.S. Congress attempted to pass an amendment to the U.S. Constitution, granting the states the right to pass such laws, regardless of the previous decisions of the Supreme Court.
The Supreme Court, you see, considers burning the American Flag an act which is protected by the First Amendment right to free speech. The only way Congress could make such anti-flag-desecration laws pass constitutional muster is to amend the very document that protects our rights. The bill, thank goodness, was rejected by just 34 votes on June 21, 1990. Tragically, the Conservative majority in the 104th Congress took it upon itself to reintroduce this piece of time-wasting legislative garbage two years ago. With all the problems facing America right now, it's hard to imagine how 252 Representatives and 50 Senators found the time to sign this legislation and push to change our Constitution to eliminate this form of expression which the Supreme Court of America has upheld.
This bill was passed by the House of Representatives on 6-28-95, by a vote of 312-120.
It was sent to the Senate, where it needed a 2/3 majority (66 votes) to pass. On 12-12-95, the amendment was defeated when it failed by only 3 votes.
Most of us breathed a sigh of relief, thinking the fight was over. And then, on 2-13-97, Rep Solomon (R-NY) introduced it again, to the 105th Congress. And this time, it came pre-signed -- with 201 co-sponsors.
The bill was killed in the Senate, which did not vote on it before recessing.
And then, it was re-introduced in the 106th Congress. Again, it passed the House, but came just short of passage in the Senate. This pattern is likely to continue until enough citizens tell their Congressmen to stop re-introducing this legislation.
For a more in-depth (and accurate) chronology of this legislation, please see The Chronology of Flag Burning, as prepared by the Emergency Committee to Stop the Flag Amendment and Laws.
I have prepared a table of the voting record from the 104th Congress, so you can find out how your Reps voted.
There is also a detailed Legislative history of the House and Senate versions of the bill, in case you're interested. It includes the full text of the legislation.
By popular demand (and in order to provide the most comprehensive resource on flag desecration) I've obtained several government documents, Supreme Court decisions, and legal briefs. As I get these HTML-ifyed, I'll be posting them here.
- U.S. Code on Flag Burning - also known as the Flag Protection Act of 1989
The full text of the Supreme Court decisions in
- Texas V. Johnson 491 U.S. 397 (1989) (There is an audio transcript available via Oyez.org)
in which the Supreme Court upheld a Texas court decision that Gregory Johnson's conviction for flag desecration was unconstitutional. Importantly, the Supreme Court here determined:
- What Gregory Johnson did (burn the flag) was expressive conduct, protected by the Constitution
- Johnson's actions did not constitute "fighting words,"
- Since not all offensive conduct will incite a riot or disturb the peace, the government may not outlaw certain types expressive conduct simply because they may have such effects. (In Johnson's case, the State admitted that there was "no actual breach of the peace occurred at the time of the flagburning or in response to the flagburning."
and made the famous quote:
- "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."
- Here are some other key Supreme Court decisions related to flag desecration.
WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624 (1943)
Whether the refusal of Jehovah's Witnesses to salute the flag in school is desecration. This reversed the previous decision in Gobitis.
STROMBERG v. PEOPLE OF STATE OF CALIFORNIA, 283 U.S. 359 (1931)
Displaying a red flag in public as a symbol of anarchy or protest
STREET v. NEW YORK, 394 U.S. 576 (1969)
Burning a flag and speaking contemptuously of the flag
UNITED STATES v. O'BRIEN, 391 U.S. 367 (1968)
Burning a draft card upheld as a political protest
HALTER v. NEBRASKA., 205 U.S. 34 (1907)
Using the flag in commercial advertisements (it was declared illegal, and never overturned, although such laws are rarely enforced.)
UNITED STATES v. EICHMAN, 496 U.S. 310 (1990)
After the Supreme Court decision in Johnson, Congress passed the "Flag Protection Act," which they thought would overrule the decision and make flag burning a federal offense. When this act went in to effect, many people burned flags in protest. Eichman was one of many defendants, but this decision was the important ruling overturning the Protection Act.
(Audio transcript available via oyez.org)
SPENCE v. WASHINGTON, 418 U.S. 405 (1974)
Spence was arrested and convicted for taping a peace sign to his flag and displaying it in public as a war protest. This decision declared his actions Constitutional.
The following are files submitted to The Flag Burning Page by Edward Hasbrouck:
- Testimony submitted on behalf of the Emergency Committee on the Supreme Court Flag-Burning Case to the Congressional hearings held 13-20 July 1989, at which the possibility of amending the U.S. Constitution to outlaw flag desecration was first considered.
- A statement by Gregory "Joey" Johnson, the defendant in Texas Vs. Johnson.
- Further statements by Johnson and Hasbrouck
- A statement by Johnson and Hasbrouck, made just before the Senate vote - 12-8-95
- A discussion by Hasbrouck on the detailed working of Parlimentary procedure - giving insight into exactly how many votes are needed to amend the Constitution - including the section of the Congressional Record that closed debate and brought the amendment to a vote.
- A statement from the ACLU stating their opposition to the amendment
- An Associate Press article just before the vote - it gives some detailed information on and quotes from specific Senators who support or oppose the amendment.
- Another AP article - after the vote
- Another AP article - detailing the amendment's opposition from Vermont
- An article from CNN after the vote
- A statement by Johnson and Hasbrouck, made after the vote.
- A statement from the president of the American Bar Association on the dangers of the amendment.
These are files taken from the Congressional Record, and HTML-ifyed for your viewing pleasure.
- Senator Feingold spoke brilliantly on 12-8-95, in the closing debate before the vote. I couldn't have written a better opposition to this amendment. He deserves deep praise.
- The full text of the Senate debate from 12-95.
- Voting history for 104th Congress
- Rep. Solomon's 2-28-95 announcement of the Flag Amendment when submitted to the House.
- a bizarre conversation that took place on the House floor on 2-23-95 between Mr. Dornan and Mr. Talent. The transcript of this event, part of the Congressional Record, clearly shows the wackiness of Congressional proceedings. In attempting to glorify Old Glory, The Honorable Representatives discuss the flag-raising on Iwo Jima, the importance of John Wayne's movies, the actor who portrayed the Tinman in the Wizard of Oz, the height of the Empire State Building, and the show-business importance of Bob Hope and Bing Crosby. Your tax dollars at work....
- 2-28-95: Rep. Skaggs tells the House why we should keep the Freedom the Flag Stands For.
- Rep. Gary Ackerman gave a brilliant speech against this amendment during the House Debate in June. I haven't been able to find it yet, but I'm looking.
Back in 1990, many respected Senators gave eloquent speechs against this same amendment.
- 6-26-1990: George Mitchell
- 6-25-1990: Tom Daschle
- 6-25-1990: Patrick Leahy
- 6-25-1990: Dale Bumpers
- 6-21-1990: David Boren
- 10-4-1989: Howard Metzenbaum
- 6-11-1990: Ted Kennedy
- 10-18-1989: Barbara Mikulski
- 6-20-1990: Jeff Bingaman
- 6-20-1990: Bill Bradley
- 6-14-1990: Paul Simon
- 10-19-1989: Christopher Dodd
The rest of these speeches are recent pedagogic denouncements of flag burning. Although some forward-thinking Congressmen have spoken out recently against the legislation, I haven't found their comments on the Internet yet. A long time ago, I had the free time that allowed me to keep updating this page and posting that sort of stuff. I just don't these days -- sorry!
- 3-21-95: The Honorable Tom Bevill of Alabama, and his Glorifying of the Symbol of Our Nation.
- 1-5-95: A similar speech, by Bill Emerson of Missouri.
- 3-21-95: Senator Hatch, and several other Senators, giving just about the same speech in the Senate.
- 3-21-95: Rep. Montgomery, discussing the imminent passage of H.J.Res 79.
A 1996 exhibit at the Phoenix Art Museum caused a pretty big controversy. Entitled Old Glory: The American Flag in Contemporary Art, it caused a stir on a national level. Even Newt Gingrich got involved. Here are some links to websites that offer more information on the exhibit. (some of them are to newpaper sites, which may disappear as they get old.) Please be sure to come back to the Flag Burning Page when you're done!
- New Times Article 4-4-96 detailing the controversial Phoenix Art Museum exhibit
- New Times Article 6-6-96 about Kate Millet, one of the controversial artists at the exhibit.
- New Times Review of the art exhibit
- The Phoenix Art Museum defends its exhibit
- CNN story (PDF version) on the exhibit, complete with video clips (web link)! 3-25-96
- AP article about the exhibit - courtesy of ArtScene
- Tucson Weekly 4-4-96 - article about the exhibit
- a time line of events surrounding the exhibit.
And for those of you doing research on the flag desecration controversy, here is an entire resource section filled with books and magazine articles. You can even order books about flag desecration from Amazon.com and have them delivered to you!
Warren S. Apel