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The Flag-burning Debate Continues

The Flag-burning Debate Continues

Nazis captured Jim Rogers. He was routinely beaten and given barely enough food to survive. During the time he spent in a World War II prisoner of war camp, he managed to keep his sanity by scraping together bits and pieces of colored cloth in order to make an American flag. As his fellow prisoners began to die, it was his American flag which provided him with a sense of identity and gave him the inspiration to keep living.

It is no wonder, then, that Jim becomes disturbed when he turns on the news and sees our flag being burned in the streets of foreign nations. What disturbs him even more is when he sees the American flag being burned by Americans in America. In 1989, the Supreme Court overturned, in a 5-4 decision, a guilty verdict against a Texas flag-burner, claiming that burning the American flag is a form of free speech which is constitutionally protected. Yet the fact that flag-burning is legal does not ease Jim’s angst, and apparently his feelings are shared by many of his fellow Americans. The majority of Americans are in favor of adopting a constitutional amendment that would make flag-burning illegal (Johnson 16).

After multiple attempts, a flag-burning amendment was finally approved by the House of Representatives in 1995, but it fell 3 votes short of approval in the Senate (Buckly 75). Still, lobbyists continue to push for anti-flag-burning legislation. One may wonder why, if the majority of Americans want the flag protected, does Congress and the Supreme Court continue to resist the idea of a flag amendment.

The easiest argument to make against protecting the flag is that burning it is a form of free speech which is protected by the First Ame…

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…y patriot,” would answer, “Yes–it most certainly is.” Arguments for and against a flag amendment, as is the case with most things in life, rest mainly upon subjective interpretations and points of view. Not until one side of the flag debate develops an irrefutable defense of their cause with this issue be settled; it will come as no surprise, then, if the flag-burning debate continues to rage for many years to come.


Buckley, William F. “On the Right.” National Review 47. July 10, 1995: 75.

Ehrenreich, Barbara. “My Flag, Your Shorts.” Time 1. July 3, 1995: 62.

Johnson, Adrian. “Value Judgments.” Newsweek 26. June 25, 1990: 16-18.

Leo, John. “Oh, Say, Can You See . . . the Point?.” U.S. News and World Report 119. July 10, 1995: 17.

Phillips, Robert S., ed. Funk

Is Flag Burning Protected by the First Amendment?

Is Flag Burning Protected by the First Amendment?

Can an individual be prosecuted for openly burning the American flag in a political protest? Gregory Johnson did this in a political protest outside Dallas City Hall. He was then tried and convicted of desecrating a venerated object under a Texas law (Penal Code 42.09), which states that “a person commits an offense if he intentionally or knowingly desecrates a state or national flag” (317). The question of whether this Texas law is in violation of the First Amendment, which “holds that Congress shall make no law… abridging the freedom of speech” (316), was brought before the United States Supreme Court in Texas v. Johnson (1989). A divided court ruled 5 to 4 that the Texas law was in violation of the First Amendment. Using the same Constitution, precedents, and legal standards, the Supreme Court justices came to two drastically different positions regarding the constitutionality of prohibiting flag burning. To see how such a division is possible, we are going to compare and contrast both the arguments and the methods of argumentation used by both the majority opinion (written by Associate Justice Brennan) and the dissenting opinion (written by Chief Justice Rehnquist), which critiques the majority opinion.

Surprisingly, both Associate Justice Brennan’s majority opinion and Chief Justice Rehnquist’s response, the dissenting opinion, cited Street v. New York to support their contradictory conclusions. In Street, the Supreme Court overturned the conviction of the defendant, who “burned a flag in the street shouting ‘We don’t need no damned flag’ ” (323). Brennan argues that the precedent in this case supports the majority opinion: “[In Street] we c…

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…, but a Supreme Court justice’s appointment lasts a lifetime.

Works Cited

Note: all documentation that only includes the page number refers to the Rehnquist and Brennan opinions.

“Chicago v. Mosley.” 1991. World Wide Web. 3 March 2001. World Wide Web.


O’ Connor, Sandra D. “Boos v. Barry.” 22 March 1988. World Wide Web. 3 March 2001.


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