NCJ Number
129602
Journal
Harvard Civil Rights-Civil Liberties Law Review Volume: 25 Issue: 2 Dated: (Summer 1990) Pages: 591-624
Date Published
1990
Length
34 pages
Annotation
This article contends that virtually any legislation designed to punish individuals who burn the American flag will be inconsistent with the first amendment.
Abstract
Such inconsistency will arise because the government will not be able to assert any interest that is not related to the restriction of free expression. Given this inability, first amendment principles do not allow the government to categorically exempt from protection expression involving the American flag or other government symbol. Arguments in favor of such laws, including those recently made by members of the Supreme Court and legal scholars, devalue the legitimacy of unpopular political views and ignore the importance of the first amendment's role in protecting such views. Arguments against flag protection go farther than an analysis of Supreme Court decisions interpreting the Constitution. Because the flag is a pure symbol, any government attempt to require a certain perception of its meaning, either by statute or constitutional amendment, violates not only the first amendment but also the spirit of popular sovereignty. Further, the concept of the State in American history is antithetical to the notion that government can make any concept of itself sacred or above debate. Attempts to make the State sacred are clearly inconsistent with the American concept of the State when they restrict individual liberty. Any attempt to criminalize an act by those expressing their strongly held but contrary and antimajority views cannot stand. As of mid-1990, the Supreme Court had pending two appeals from lower court decisions declaring the Flag Protection Act of 1989 unconstitutional. 170 footnotes