• Background: An ongoing battle between the states, congress, and the Courts over flag desecration and 1st Amendment rights
• Debate: Sacred symbol v. Freedom of speech
• Country Comparison: punishments range from nothing, to prison or more
• Recent Legislation: 1990 bill overturned by Court, 2006 failed.

Background

• The issue of flag desecration has a rich legal history. Beginning in 1968, the Flag Protection Act sought to punish demonstrators of the Vietnam War and 48 of the 50 U.S. states enacted similar flag protection laws. The Supreme Court overturned all flag protection statutes in the 1986 case Texas v. Johnson citing First Amendment violations.
• The firm stance the court has taken Court in these two decisions has led some to speculate that Congress try to pass Constitutional amendment (typically with a 3/4 vote of Congress followed by a 3/4 ratification by states). The House of Representatives has honored a request from all 50 states that have asked Congress, at one time or another, to put an amendment on the table.
• In a 2005 poll, the First Amendment Center found that 63% of Americans opposed altering the Constitution with such an amendment, an opinion up from 53% in 2004.

Debate

• Proponents of a constitutional amendment banning flag desecration believe that the flag is a sacred symbol that represents the sacrifice many Americans gave to preserve our collective values.
• Opponents, however, see flag desecration, usually in the form of burning, as a rarity. More importantly, it is becoming increasingly difficult to decipher what exactly the 'flag' is; while traditional flags are easy to distinguish, should one be punished for smearing a chalk-drawn flag on the sidewalk? Opponents feel this amendment would run into major ambiguities. Those who stand against such an amendment not only point to the First Amendment, but more importantly to the symbolism of the flag as the protector of the very freedoms that would allow its desecration.

Country Comparison

• In Australia, flag burning is not a crime, though several prominent politicians attempted to make it so after a student publicly burned an Australian flag in 2002.
• In Belgium, flag desecration is a crime.
• Although not illegal to desecrate the Danish flag, the act of desecrating the flags or national symbols of any other nation is illegal in Denmark under Danish penal code section 110(e).
• In Finland flag burning is illegal.
• In Ireland the government discourages flag desecration, but has only acted against groups that desecrate the flag for commercial reasons (ex.: Guinness selling the Irish flag with the Guinness logo in the center).
• Flag desecration is illegal in New Zealand if it can be proven to have been done in an attempt to dishonor the flag.
• In Portugal, flag desecration carries the risk of up to two years in prison.
• As a result of the Saudi flag having holy significance, any act against its flag is severely punished.

Recent Legislation

• Congress passed the Flag Protection Act which was swiftly struck down again by the Supreme Court with a 5-4 majority in the 1990 United States v. Eichman decision.
• As of June 27, 2006, a bill proposing a constitutional amendment lost its strong support from the House and failed in the Senate by one vote.