The burning of American flags has been a form of protest protected under the First Amendment since 1989. But the debate was reignited early Nov. 29, 2016, when presidential candidate Donald J. Trump tweeted that “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or jail.”
The tweet caused an even larger reaction than the actual attempt to burn an American flag at the Republican Convention July 20, 2016, in Cleveland, where Trump was chosen as the party’s standard bearer.
During the first week of Trump’s presidency, a dozen protesters from that incident were in a Cleveland courtroom facing misdemeanor charges of incitement and failure to disperse.
The history of flag burning and the First Amendment is explained by the National Constitution Center. According to its website, flag burning became a top issue almost 50 years ago during the in 1968 when, amid flag-burning protests of the Vietnam War, Congress adopted the Federal Flag Desecration Law.
States, Congress and federal judges continued to debate the shape of what that meant until Gregory Lee Johnson burned a flag outside Dallas City Hall in 1984. He was convicted of breaking a Texas state law against desecrating the American flag and sentenced to a year in prison and fined $2,000. His case went to the U.S. Supreme Court.
The court ruled 5-4 in 1989 that burning the American flag was symbolic speech and protected by the First Amendment.
Justice Anthony Kennedy wrote, “Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt,” he said.
In his dissent, Chief Justice William Rehnquist wrote “I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”
That ruling covered only Texas, and the U.S. Congress responded with the anti-burning Flag Protection Act of 1989. The Supreme Court ruled the new law unconstitutional in 1990.
These are reactions MSU journalism students gathered in January, 2017.
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