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Show HINCKLEY JOURNAL OF POLITICS SPRING 2001 deserves special exemption from the First Amendment. According to the Chief Justice, "the American flag... does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another 'idea' or 'point of view' competing for recognition in the marketplace of ideas...Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have" (Texas v. Johnson 1989, 429). Furthering his argument, Rehnquist recalls from Chaplinsky v. New Hampshire (1942) that "the right of free speech is not absolute...the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace," are not meant to be protected by the First Amendment (Chaplinsky v. New Hampshire 1942, 571-572; Texas v. Johnson 1989, 430). Rehnquist also argues that a governmental prohibition would not stifle the ability to protest any aspect of America, because Johnson's protest of U.S. policy "conveyed nothing that could not have been conveyed...just as forcefully in a dozen different ways" (Texas v. Johnson 1989, 431). Lastly, Rehnquist appeals to the civic sense of the public, arguing that "surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people - whether it be murder, embezzlement, pollution, or flag burning" (Texas v. Johnson 1989, 435). His suggestion of legislation was realized soon after the Court announced Johnson's innocence. THE RESPONSE TO TEXAS v. JOHNSON Congress immediately responded with the Flag Protection Act of 1989, which criminalizes the conduct of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a United States flag, except conduct related to "the disposal of a flag when it has become worn or soiled" (United States v. Eichman 1990, 314). Just days after passage, the Act was struck down by the Supreme Court in U.S. v. Eichman, by a 5-4 vote (all Justices in Eichman voted the same as in Johnson), because "the Act...suffers from the same fundamental flaw" as the Texas law, "and for the reasons stated in Johnson...the Government's interest cannot justify its infringement on First Amendment rights" (United States v. Eichman 1990, 317-318). Reacting to the judgment, the Citizen's Flag Alliance said, "Americans were outraged. Public opinion surveys showed three out of four Americans favored protection for the flag, and a similar number believed a constitutional amendment was needed to achieve that goal" (The Citizens Flag Alliance 2000). In 1995, certain members of Congress began pushing for an amendment, to provide that "the Congress shall have power to prohibit the physical desecration of the flag of the United States" (104th Congress 1995, H.J.Res.79). The House passed the resolution, 312-120 (roughly 72 per- cent), but it died in the Senate, where the 63-36 vote fell short of the necessary two-thirds vote. While Senate passage would still have required the approval of three-fourths of state legislatures to become law, forty-nine state legislatures had enacted proposals supporting a flag protection amendment (Mauro 1998, A16). In the 105th Congress (1997-1998), the House approved the proposal 310-114 (roughly 73 percent), but the Senate never voted on it because preliminary tallies showed it would not pass. The amendment was proposed again in the 106th Congress (1999-2000), and for the third time, it failed to pass. In the House, the vote was 305-124 (roughly 71 percent), but in the Senate it garnered only 63 yeas, 4 short of the required two-thirds majority. Most recently, the amendment was brought up again in the 107th Congress, but as of publication had not been voted on. The debate took on a social as well as a political character, when many activists lobbied in support of the amendment. Most notable of these was the Citizens' Flag Alliance, made up of "more than 135 organizations...with collective membership around 20 million" (The Citizens Flag Alliance 2000). President of the Alliance, Daniel Wheeler reports that, "in poll after poll, more than 80 percent believe the flag deserves protection" (Wheeler 1999c, A8), in contrast to numbers reported by the Gallup Poll, whose most recent survey (1999) shows 63 percent in favor (see Appendix 2). Regardless, Wheeler proclaims that "80 percent of Americans say the Court was wrong, that flag burning is not speech, it is hateful conduct" (Wheeler 1999b, A10). According to the opinions of many Americans who have editorialized their views on the issue, he may be correct. Says one amendment supporter, "any true American...would not resort to burning our precious flag... any one burning our flag should be denied citizenship and expelled from American soil. They do not deserve to be a part of this American system" (Chiasson 2000, B8) Another concerned citizen has expressed that "the Constitution was given as a statement of liberty," and "was not intended to serve as a.. .hiding place for those who would destroy and undermine the structure which was provided at so great a price." Continuing, he says that if anyone "doesn't believe in the symbol of this country" they should "move to Iran, Russia or North Korea, where they won't see it flying" (Crane 1999, BIO). Clearly, many private citizens vehemently resent flag burning, and this extends to national heroes. General Norman Schwarzkopf, leader of U.S. forces in Operation Desert Storm stated, "I regard legal protections for our flag as an absolute necessity and a matter of critical importance to our nation. The American flag, far from a mere symbol or a piece of cloth, is an embodiment of our hopes, freedoms and unity" (Justis 1999, E3). Opponents of the amendment voice their opinions just as strongly, though perhaps not as fanatically. Representative Gary Ackerman (D-New York) believes, "if a jerk burns a flag, America is not threatened. If a jerk burns a flag, democracy is not under siege. If a jerk burns a flag, freedom is not at risk and 51 |
