The First Amendment and Flag Burning - Essay Example

The First Amendment and Flag Burning Introduction Flag burning remains to be one of the most controversial practices in the United s. The United States Congress is once again considering the passage of a constitutional amendment to ban the desecration of the American flag. Protests to this intended amendment have already been raised in the Congress and among the citizens as well. This paper shall now discuss flag burning in the United States and how it is very much protected by the First Amendment of the Constitution. It shall present an argument which favors flag burning and refutes the passage of an amendment preventing it. Discussion The United States Congress is considering the amendment of the First Amendment of the Constitution in order to ban the desecration of the American Flag. This proposal was introduced in the Senate by Republican David Vitter and supported by 20 other Republicans and the Democrat Debbie Stabenaw (Volokh “Article”). This proposal once again resurrects the previous arguments for and against flag burning. Supporters of the amendments to the Constitution insist that the Supreme Court justices have abused their discretion in deciding to protect flag burning acts. They contend that the case of Texas v. Johnson encourages an act which violates the symbols of our freedom and our liberties (Volokh “Article”). This argument may be refuted by pointing out that the right to actually burn the flag is also one of these liberties protected by the Constitution. Insisting that flag burning is not included as a right is a contradiction by itself. It sets a limit to one’s right to express oneself – even to express outrage against the basic symbols of our country. The flag of the United States is indeed one of the basic symbols of our statehood; people see it and are indeed reminded of the difficult and bloody path to achieve statehood. Although it stands to represent our stalwart democratic status, burning it does not diminish the very symbols that it represents. But preventing the right to burn it does. The original framers of the United States Constitution have set the First Amendment to include the protection of the freedom of speech and of the press. Although, they do not expressly state that the freedom of speech is both verbal and non-verbal, an analysis of their intentions to include non-verbal speech may be drawn from their discussions leading up to the finalization of the constitution. The Framers of the Constitution were actually working in the context of the common law system which treats the non-verbal and the verbal freedom of expression as one and the same. The restrictions to the freedom of speech, at that time, actually included both verbal and non-verbal restrictions. These restrictions included libel, slander, sedition, obscenity and even blasphemy (Volokh “Article”). The important point which should be noted, in this instance is that the cases and treatises seen at the time of the original Framers of the Constitution understood the expression and speech in both its verbal and a symbolic manifestation. It is important to note also that the restrictions to the freedom of expression included the non-verbal manifestations of expression. From this, it can be extrapolated that the Framers intended to also protect the non-verbal freedom of expression of the people. The interpretation of the constitution has to be made within the context in which it was framed and at the time it was framed. We cannot interpret it in a different context because then we would be misinterpreting the spirit of the law. In a First Amendment decision by the Supreme Court in 1839, they ruled that symbolic and verbal expressions are equal and apply to the constitutional speech protection and also to common law restrictions. They decided in the case of Brandeth v. Lance (as quoted by Volokh “Article”) that the constitutional freedom of speech and of the press included paintings, not only printed and spoken words. In a 1795 Pennsylvania case, the Supreme Court ruled that the building of liberty poles is an expression which may be construed in the context of constitutional free speech principles. These poles were usually taken to express liberty and freedom, and then later they were taken to mean the opposition to tyranny and oppression as well. One of the notable Framers of our constitution, James Madison initially drafted the First Amendment to include the ‘right to speak, to write, or to publish their sentiments’ (Volokh “Article”). On several occasions the Supreme Court ruled on the violations or on questions relating to the freedom of expression. In a comment by a Supreme Court Justice James Wilson, he often referred to the word ‘publish’ as inclusive of the right to display symbols and to print books (Volokh “Article”). The redrafting of the words in the final words of the Constitution, they summarized the first amendment as the “freedom of speech or of the press”. The word press now taking to mean a rephrasing of the words of Madison ‘to write or to publish their sentiments’. When the present liberal interpretation of the freedom of expression, like flag burning would be applied to the time of the Framers of the Constitution, no doubt, they would be labeling such acts as treasonous (Volokh “Article”). However, it cannot be denied that these Framers intended all along the full protection of both verbal and symbolic manifestations of the right to express oneself. Back when the state was in its infancy, any attacks on the government and on state symbols in general would be indignantly interpreted as unlawful. However, now that the liberties of the people have found full expression, it is possible to interpret the freedom of expression in its pure context – that which includes the right to burn the flag in indignation. In the case of Spence v. Washington, the Supreme Court ruled that affixing peace sign stickers to a flag may actually be considered an expression of the constitutional right to speech and expression (as quoted by Head “Civil Liberties”). It is strange to note that when the expressions are one of peace, they are favored by the legislators. But why should flag burning be different? Just because it is a more blatant expression of protest does not make it that much different from the act of affixing peace signs on it. They are still basically non-verbal expressions of speech and expression. The Supreme Court and even the Legislative body of the United States cannot afford to vacillate between two points, especially when our basic constitutional rights are at stake. They also cannot afford to be conservative in interpreting the mandates of the United States Constitution because that is when possible abuses and violations of its basic tenets can seep in. The United States Supreme Court ruled in the case of Texas v. Johnson (1989, as quoted by Head “Civil Liberties”) that when Gregory Lee Johnson burned a flag in protest against President Reagan’s policies, he was rightly practicing his freedom of expression and speech. In their 5-4 ruling, the Supreme Court effectively struck down the flag desecration laws in 48 states as they now interpreted that flag burning as part of the freedom of speech (Head “Civil Liberties”). The Supreme Court affirmed their ruling on several occasions. The Congress attempted several times to pass the anti-flag burning amendment; however, their attempts never met the required number of votes (Head “Civil Liberties”). And now this fresh attempt at amending the First Amendment is yet another attempt at curtailing our freedom of speech and expression. The discussions above undoubtedly prove that the First Amendment of the Constitution was meant to protect both the verbal and the symbolic manifestations of free speech and expression. Therefore, in the present time when we are in a better position to protect this right and freedom, we should honor its spirit and its intent by allowing the freedom to burn the flag in protest. Works Cited Head, T. “Flag Burning Laws - History of U.S. Laws Against Flag Burning”. Civil Liberties. 2009. 22 October 2009 Volokh, E. “Flag Burning and Free Speech”. Article. 3 July 2009. 22 October 2009 Read More