TALKING POINTS
Question:
Is flag burning protected as symbolic speech by the First Amendment?
Texas Johnson
1. Can the government prohibit the act of flag burning as an infringement on the Free Speech Clause
of the First Amendment?
Affirmative. Yes.
The Court has interpreted the First Amendment to grant a
higher level of protection to speech than it grants to conduct
because not all conduct is considered a form of speech.
The First Amendment does protect symbolic speech, but
some actions do not always rise to the level of “symbolic
speech” so as to require protection under the First
Amendment. Flag burning is the destruction of a symbol of
national unity. Even if the flag that is destroyed is private
property, the government has a legitimate interest in
regulating its protection because of what the flag
represents to the nation. Lines must be drawn when it
comes to expressive speech to make sure that otherwise
criminal conduct is not couched in “First Amendment”
terms.
Negative. No.
The Court has recognized that the First Amendment
protects certain forms of symbolic speech. Flag
burning is such a form of symbolic speech. When a
flag is privately owned, the owner should be able to
burn it if the owner chooses, especially if this action
is meant in the form of protest. So long as public
and/or the property of others is not destroyed in the
process (or there is a danger to others by setting the
flag on fire), the government cannot prohibit this
action without infringing upon free speech rights.
2. Should flag burning as symbolic speech be prohibited as an exception to the First Amendment’s
free speech protections?
Affirmative. Yes.
Even though the First Amendment protects symbolic
speech, an exception should be made to prohibit burning of
the flag. The flag is a symbol of national unity that
represents the ideals for which the United States stands.
Moreover, it honors those who died in defense of this
country. The protection of these concepts, as represented
in the flag, constitute a compelling governmental interest
that justifies a ban on flag burning/desecration.
Negative. No.
As noble as the argument is, the First Amendment
does not recognize an exception for prohibitions on
burning the flag. When the defendant burned the flag
in this case, he was making a political statement,
i.e., he did not agree with the policies of the United
States government. Moreover, as ironic as it
sounds, by being able to burn the flag, the defendant
(and other persons like him) is actually honoring the
values the flag is meant to protect. For instance, the
flag represents freedom of speech, including giving
protections to those who desecrate it. On a more
practical note, why should this one action be
excepted from the First Amendment’s protections?
Could, or should, other exceptions be made? Who
would make these decisions?
3. Should the allowance of flag burning depend upon the reasons for, and potential reactions to, the
act?
Affirmative. Yes. Negative. No.