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A Brief History
of Flag Burning

"The words of the first amendment are simple and majestic: `Congress shall make no law abridging freedom of speech.` The proposed constitutional amendment would undermine that fundamental liberty."

- Senator Ted Kennedy

In 1989, the U.S. Supreme Court decided in favor of the rights of Gregory Johnson, who had been convicted of violating a Texas law by burning a U.S. Flag. In response to this and a similar 1990 Supreme Court decision, the U.S. Congress attempted to pass an amendment to the U.S. Constitution, granting the states the right to pass such laws, regardless of the previous decisions of the Supreme Court.

 The Supreme Court, you see, considers burning the American Flag an act which is protected by the First Amendment right to free speech. The only way Congress could make such anti-flag-desecration laws pass constitutional muster is to amend the very document that protects our rights. The bill, thank goodness, was rejected by just 34 votes on June 21, 1990. Tragically, the Conservative majority in the 104th Congress took it upon itself to reintroduce this piece of time-wasting legislative garbage two years ago. With all the problems facing America right now, it's hard to imagine how 252 Representatives and 50 Senators found the time to sign this legislation and push to change our Constitution to eliminate this form of expression which the Supreme Court of America has upheld.

 This bill was passed by the House of Representatives on 6-28-95, by a vote of 312-120.

 It was sent to the Senate, where it needed a 2/3 majority (66 votes) to pass. On 12-12-95, the amendment was defeated when it failed by only 3 votes.

 Most of us breathed a sigh of relief, thinking the fight was over. And then, on 2-13-97, Rep Solomon (R-NY) introduced it again, to the 105th Congress. And this time, it came pre-signed -- with 201 co-sponsors.

The bill was killed in the Senate, which did not vote on it before recessing.

And then, it was re-introduced in the 106th Congress.  Again, it passed the House, but came just short of passage in the Senate.  This pattern is likely to continue until enough citizens tell their Congressmen to stop re-introducing this legislation.

For a more in-depth (and accurate) chronology of this legislation, please see The Chronology of Flag Burning, as prepared by the Emergency Committee to Stop the Flag Amendment and Laws.

 I have prepared a table of the voting record from the 104th Congress, so you can find out how your Reps voted.

 There is also a detailed Legislative history of the House and Senate versions of the bill, in case you're interested. It includes the full text of the legislation. And here are links to a seven random references to the bill in the House [1] [2] [3] [4] [5] [6] [7]

 By popular demand (and in order to provide the most comprehensive resource on flag desecration) I've obtained several government documents, Supreme Court decisions, and legal briefs. As I get these HTML-ifyed, I'll be posting them here.

    Whether the refusal of Jehovah's Witnesses to salute the flag in school is desecration.  This reversed the previous decision in Gobitis.
    Displaying a red flag in public as a symbol of anarchy or protest

STREET v. NEW YORK, 394 U.S. 576 (1969)
    Burning a flag and speaking contemptuously of the flag

UNITED STATES v. O'BRIEN, 391 U.S. 367 (1968)
    Burning a draft card upheld as a political protest

HALTER v. NEBRASKA., 205 U.S. 34 (1907)
    Using the flag in commercial advertisements (it was declared illegal, and never overturned, although such laws are rarely enforced.)

UNITED STATES v. EICHMAN, 496 U.S. 310 (1990)
    After the Supreme Court decision in Johnson, Congress passed the "Flag Protection Act," which they thought would overrule the decision and make flag burning a federal offense.  When this act went in to effect, many people burned flags in protest.  Eichman was one of many defendants, but this decision was the important ruling overturning the Protection Act.
(Audio transcript available via oyez.org)

SPENCE v. WASHINGTON, 418 U.S. 405 (1974) 
    Spence was arrested and convicted for taping a peace sign to his flag and displaying it in public as a war protest.  This decision declared his actions Constitutional. 

The rest of these speeches are recent pedagogic denouncements of flag burning. Although some forward-thinking Congressmen have spoken out recently against the legislation, I haven't found their comments on the Internet yet. A long time ago, I had the free time that allowed me to keep updating this page and posting that sort of stuff. I just don't these days -- sorry!

A 1996 exhibit at the Phoenix Art Museum caused a pretty big controversy. Entitled Old Glory: The American Flag in Contemporary Art, it caused a stir on a national level. Even Newt Gingrich got involved. Here are some links to websites that offer more information on the exhibit. (some of them are to newpaper sites, which may disappear as they get old.) Please be sure to come back to the Flag Burning Page when you're done!

And for those of you doing research on the flag desecration controversy, here is an entire resource section filled with books and magazine articles. You can even order books about flag desecration from Amazon.com and have them delivered to you!

Warren S. Apel