Resolved, that desecration of the American flag should be illegal.

In the roughly 225 years that the United States of America has existed under the Constitution, perhaps no tenet of American government has been more espoused and more enduring than the fundamental idea of freedom of expression. Enshrined in Amendment I of the United States Constitution, the idea is that the government cannot restrict speech and expression on the basis of disagreeable content. Amendment I reads (emphasis mine): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances. Over the course of American history, as Amendment I has been interpreted by the Supreme Court, several exceptions to the idea of free speech have come up. For example, if speech creates clear and present danger, it can be restricted. The oft-cited instance of this would be shouting “Fire!” in a crowded theater. Exceptions like the clear and present danger exception has come up, but there is one principle that the Supreme Court has made abundantly clear: the government cannot restrict free expression on the basis of disagreeable content. One way to test whether or not content is the basis for the restriction is to keep the method of expression the same and simply change the content. For example, in the case Snyder v. Phelps, when the Supreme Court ruled 8-1 that Westboro Baptist Church were protected under the First Amendment when they picketed at a soldier’s funeral, Chief Justice John Roberts wrote: The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages. Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. (1) The opinion makes it clear that the government cannot restrict speech or expression on content alone, for the First Amendment exists for the very purpose of protecting minority opinion, no matter how disagreeable to the majority, from suppression. It is in line with many years of legal precedent at the federal level. Fortunately, it is not up to speculation what this means when it comes to flag desecration, because the Supreme Court has twice ruled on flag burning as it relates to the First Amendment. In 1989, the cases Texas v. Johnson and United States v. Eichman were both decided by the Supreme Court of the United States. In both cases, it was decided that flag burning (and desecration in general) is expressive conduct that cannot be banned by the United States government. Thus, to make it illegal would be unconstitutional. The case was perhaps best summed up in Justice Brennan’s majority opinion, in which he explains the Court’s reasoning and cites a wealth of past cases as legal precedent for the decision: If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. See, e.g., Hustler Magazine v. Falwell, 485 U.S. at 485 U. S. 55-56; City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 466 U. S. 804 (1984); Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 463 U. S. 65, 463 U. S. 72 (1983); Carey v. Brown, 447 U. S. 455, 447 U. S. 462-463 (1980); FCC v. Pacifica Foundation, 438 U.S. at 438 U. S. 745-746; Young v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 63-65, 427 U. S. 67-68 (1976) (plurality opinion); Buckley v. Valeo, 424 U. S. 1, 424 U. S. 16-17 (1976); Grayned v. Rockford, 408 U. S. 104, 408 U. S. 115 (1972); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 408 U. S. 95 (1972); Bachellar v. Maryland, 397 U. S. 564, 397 U. S. 567 (1970); O'Brien, 391 U.S. at 391 U. S. 382; Brown v. Louisiana, 383 U.S. at 383 U. S. 142-143; Stromberg v. California, 283 U.S. at 283 U. S. 368-369. (2) The Supreme Court made the correct decision based on legal precedent when it comes to the First Amendment. But for many, simply citing the Supreme Court’s ruling is not sufficient. There are of course instances where the Supreme Court has been wrong, so it becomes necessary to look at the idea of flag burning from a different angle. Put simply, banning flag burning to protect an American symbol of freedom and liberty is hypocrisy. The way to respect a flag that stands for freedom and liberty is not to restrict the freedom and liberty of American citizens. Flag burning is seen as a horrible act by society, and rightfully so. Yet, it is contrary to the ideals of America for the country to simply say that because the majority does not like it, it should not be permitted. To do so would be disrespecting the ideals that the flag stands for much more than desecrating the flag does. It is helpful to examine the flag burning case again by going back to the test presented in Snyder v. Phelps (the Westboro case). The content of the expression must be independent of the reason for banning it. Thus, if a law would seek to ban flag burning but keep legal the burning of other pieces of cloth, it would be 100% content based, which is contrary to the American principle of free speech. Yet, there is a question that one might ask: what if the United States bans flag burning for other reasons, like the danger that fire poses or the environmental concerns? This is a valid point in that the material that flags are made of today creates a great deal of environmental problems when burned. However, any law seeking to combat this problem should not ban all flag burning; it should ban the act of burning that particular type of fabric. Likewise, a law could be passed forbidding the burning of materials at a certain place for safety reasons, but it should not simply be a ban on flag burning. So, the other issues related to flag burning have alternate solutions. The United States of America has, arguably, the oldest constitution in the world. Enshrined for close to 225 years is Amendment I, which guarantees freedom of speech, including symbolic speech and expressive conduct. If America is to stay true to its principles, it cannot have a system whereby the majority crushes the rights of the minority simply because it disagrees with the content of the expression that the minority is communicating. True freedom is not about punishing people for desecrating the flag; true freedom is letting people desecrate the flag, letting people with contrary opinions voice their disapproval, letting the flag burners respond, and engaging in this open dialogue. The solution to bad speech is never censorship. The solution to bad speech is more speech. As a nation, the United States was founded on these principles, and now is no time to turn our backs on them. (1) http://www.oyez.org... (2) https://supreme.justia.com...