In the United States, burning the American flag should be legal.

Let's establish some brief definitions/resolutional analysis before we begin. Though the terms are fairly clear, I think that establishing the following will help the round go more smoothly: 1. Since the resolution specifies in the United States, and since this issue, based on Supreme Court mandate (see Texas v. Johnson), burning the flag is not a matter of state jurisdiction, we can assume that we are debating burning the flag as it pertains to the Constitution of the United States. 2. The technicalities of process are not within the purview of this debate. The use of "should" in this resolution determines that we are debating the ethical merits of this practice. Other concerns, unless properly justified under the wording of the resolution, are extra-topical. 3. Please note that, due to the tournament director's instruction, the Pro is indeed defending the status quo in the United States. This will shift the burden of proof off of the Pro somewhat. While I am, obviously, required to defend my position (as status quos are not always just or right), a judge would naturally default to status quo if its opponent cannot adequately prove that change is necessary or just. ----------------------------------------------------- I have three reasons why one should strongly affirm the legality of flag burning in the US. 1. Burning an American flag is a constitutionally protected method of protest. As the Supreme Court has asserted on a number of occasions, most recently in 1989 in Texas v. Johnson, the burning of the American flag, free of other violations of reasonable law, is protected by both the First and Fourteenth amendments. Justice Brennan, delivering the Court's opinion, elaborates: "The First Amendment literally forbids the abridgment only of 'speech,' but we have long recognized that its protection does not end at the spoken or written word. While we have rejected 'the view that an apparently limitless variety of conduct can be labeled as speech whenever the person engaging in the conduct intends thereby to express an idea,' we have acknowledged that conduct may be 'sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.'" [1] It has been classified as a form of political expression. The level of distaste or offense, at that point, is immaterial. Though I may find a Klan rally offensive, constitutional rights cannot be bent or broken to prevent the upsetting of another's sentimentalities. 2. The act of burning a flag does not violate the principle of liberty, and is therefore just. Texas v. Johnson uses a specific metric to determine whether the actions of Gregory Johnson were protected speech, referred to as the "O'Brien Test." It was established by the Court in 1968's US v O'Brien, in which O'Brien chose to burn his draft card in protest of the Vietnam War. Essentially, the state's assertion of commission of a crime must be proven to be unrelated to the suppression of speech. If the state can prove that Johnson's act, for example, violated some tangible statute other than one prohibiting the burning of venerated objects (which is the law that Johnson was convicted under in Texas), then the conviction would naturally remain. In implementing this test, the Court had to look at two factors presented by the state of Texas; Texas asserted that it penalized Johnson for his action in order to "prevent breaches of the peace" and to "preserve the flag as a symbol of nationhood and national unity." The latter will be addressed in my 3rd argument, but the former is directly a matter of what philosophers such as John Stuart Mill called "liberty," a founding concept within US ideology. Mill defines liberty as follows: "It comprises, first, the inward domain of consciousness…Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow; without impediment from our fellow-creatures, so long as what we do does not harm them even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others..." [2] The gist of the above is that liberty is a weighing mechanism for acceptable forms of conduct in a just society. If an action, even if claimed expressive, will lead to the imminent violation of another's human rights, then that action should be restricted for the good of society. Flag burning, as the Court's opinion and all concurring Justices assert, does not carry the inherent ability to violate another's guaranteed rights. I turn once again to Justice Brennan: "Texas claims that its interest in preventing breaches of the peace justifies Johnson's conviction for flag desecration. However, no disturbances of the peace actually occurred or threatened to occur because of Johnson's burning of the flag. Although the State stresses the disruptive behavior of the protestors during their march…it admits that ‘'no actual breach of the peace occurred at the time of the flagburning or in response to the flagburning'…The only evidence offered by the State at trial to show the reaction to Johnson's actions was the testimony of several persons who had been seriously offended by the flag burning." [1] Like O'Brien, no violence was seen in reaction to the burning of such symbolic materials. Those burning the materials were not acting to incite violence, and at the time were acting legally in all aspects excepting the burning of the material itself. At the point where no citizens are being put in physical danger and no established rights are being violated, the right to express oneself will outweigh the claims of the state, as the state will be acting only to suppress political expression. 3. The symbolic nature of the American flag is both preserved and enhanced by allowing the practice of its destruction in protest. One of the most fundamental rights that American citizens possess is the right to form their own government, and to maintain it via direct and indirect representation. This is a system that was won through decades of violent and non-violent struggle, from the Revolutionary war to the P.A.T.R.I.O.T. Act. The Pledge of Allegiance, in some respects, reflects this, and reminds us what the flag represents: we are a republic, indivisible and guaranteeing liberty and justice for all our fellow citizens. Though the flag represents these core concepts, the flag is not the core concepts themselves. It reminds citizens, and the government which we directly control, to always keep our country just, and to maintain the rights that we fought so diligently for. One of the those principles rights, another that we have fought for tooth and nail, is the right to express ourselves politically to a government who must answer to us. Though Texas wished to prevent the burning of the flag to encourage "national unity," this is tantamount to coercing patriotism and mandating ideology, which was previously deemed unconstitutional and despotic by the Court in West Virginia State Board of Education et al v. Barnette et al [3]. The Court's opinion in Johnson concurs: "…a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent." [1] While the burning of a flag hasn't empirically been increased or devalued by its legality, the elimination of the right to do so in form of meaningful protest represents a blatant violation of everything that the American flag stands for. I await my opponent's response.