Does Having Freedom of Speech
Mean We Can Burn Our Flag?

LEVEL  
  Advanced
SUBJECT  
  History, Civics

Introduction
This lesson helps students understand that the First Amendment is dynamic. Our understanding and interpretations of it have evolved as American society has changed. While citizens may disagree about such controversial issues as burning the flag of the United States, our ability to discuss this topic — and to take and defend a position on it — is an integral part of our freedom. In this lesson, students participate in a moot court activity based on the Supreme Court case of Texas v. Johnson (1989), which involved burning the American flag.

Key concepts:

  • Symbolic speech — actions or objects that represent someone’s thoughts, ideas or words — is a form of expression that is generally protected by the First Amendment in the same fashion as words that are spoken.
  • Freedom of speech extends to statements with which we may disagree, including those that are hateful, defiant and contemptuous.
  • Speech cannot be prohibited because of undesirable actions that may result from it.
  • Government may not prohibit the expression of an idea just because society finds the idea itself offensive or disagreeable.
  • In general, individuals cannot be punished by the government if the reason for the punishment is the message or idea expressed.
  • Citizens have a right to protest government policy.

First Principles
If you and your students have not already done so, you may want to discuss the First Amendment and this curriculum’s First Principles. The list of First Principles was developed to explain in practical, everyday terms just what the First Amendment means.

Activities in this lesson relate to all the First Principles and are especially relevant to the following:

  • The First Amendment affirms the freedom of the individual.
  • Free expression is the foundation — the cornerstone — of democracy.
  • The First Amendment tells the government to keep its “hands off” our religion, our ideas, our ability to express ourselves.
  • The First Amendment helps us make choices.

First moments
Look at the research package on the flag-desecration amendment on freedomforum.org. Run a search on the Web site using relevant terms (such as flag amendment, flag desecration) to find a recent story on the issue of the proposed flag amendment to the United States Constitution. Write a one-to-three-paragraph reaction to the latest action.

Procedure
Step 1: Thinking about the flag
Whether your school recites the Pledge of Allegiance daily, begins every pep rally with the national anthem or has a flagpole in front of the building, the American flag is a regular part of most students’ lives.

In introducing this lesson and its series of activities, you may want to include a discussion about the flag’s colors, design, history in American society and proper display.

You might ask if any Boy Scouts in the room can tell the class the protocol for disposal of the flag when it is tattered or worn. For citizens, the procedure is codified in 36 USCA Sec. 176, Respect for flag, which states that “[t]he flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.” Boy Scouts begin the procedure by cutting the field of blue from the flag, so that it no longer is considered “Old Glory.” Most procedures call for separate burning of the two pieces; Boy Scouts cut the stripes apart and burn them separately.

Step 2: Symbolic speech
A continuing First Amendment issue involves the burning of the American flag as a means of protest. Ask students to speculate about why burning the flag would be a First Amendment issue. Remind students of the guarantee of freedom of speech found in the First Amendment. Write the words symbolic speech on the board. Having discussed the symbolism of the red, white and blue of the flag, you are ready to extend their understanding of symbolic imagery to actions that qualify as symbolic speech. Of what is the flag a symbol? What actions, events and concepts does it represent? Symbolic speech is an action or an object that represents someone’s thoughts or ideas.

Step 3: The Supreme Court case
Because flag-burning may be a controversial issue in your community, you may want to send a letter home to parents describing the classroom activities you are planning. The sample letter about the moot court activity may be helpful; feel free to edit it to suit your needs. In addition, you may want to arrange for a panel discussion involving community members who represent both sides of the issue. Such a discussion will ensure that students are exposed to all viewpoints.

It is often helpful in conducting a moot court to have assistance from lawyers or law students. Arrangements for such assistance should be made well in advance. Provide the resource people with copies of the materials students are using and indicate how you want them to participate — to help students research and prepare cases or to take active roles (e.g., chief justice) in the moot court. Your local bar association can provide names of lawyers who are willing to volunteer in schools.

Distribute and discuss Background of Texas v. Johnson, which introduces Gregory Lee Johnson, describes the situation in August 1984 and details other events leading up to the Supreme Court case.

Step 4: The assignment
Tell students they will be enacting oral arguments before the Supreme Court in the case. Describe to students the path a case takes before it gets to the Supreme Court and the procedure followed when a case is heard. You may want to review and direct your students to Making an Appeal to the Supreme Court, which outlines the appeals procedure and suggests preparation for this unit.

Divide the class into four groups representing the petitioner (Dallas district attorney), the respondent (attorneys for Johnson), the Supreme Court justices and the media. Petitioners are those who are appealing the lower court decision. Those on the other side in the case are called respondents. (Note: In this case it is the government — the Dallas district attorney — who is the petitioner to the Supreme Court. Sometimes, a defendant in a case follows a straight path of appeals through the court system up to the Supreme Court. In this case the defendant — Johnson — appealed a guilty verdict. When his conviction was upheld on first appeal, Johnson appealed again. In the second appeal, the original decision was reversed. And so, the district attorney was the one to initiate the final appeal to the Supreme Court.)

Although students are using the particulars of Texas v. Johnson in acting out this case, those who are playing the role of the justices may come to different majority and minority decisions. Their interpretation of the constitutional issue should be based on constitutional principles and precedents, not on emotions or personal preference. Students acting as petitioner and respondent may use cases after 1989 in their arguments.

Give the groups the information sheets: Petitioner-Dallas District Attorney, Respondent-Attorneys for Johnson, Justices, Media, appropriate for their positions as well as Court Cases Set a Precedent. Allow students enough time to prepare their roles. You may wish to divide the speaking duties of the petitioner and respondent or have each group select one or more students to represent it.

Step 5: The moot court
Before the moot court begins, review the steps to be followed:

  • Students playing the role of the media will report, in a TV-style news broadcast, the facts of the case that is about to be argued before the Supreme Court.
  • The petitioners, represented by the Dallas district attorney, will present their case.
  • The respondents, i.e., the attorneys representing Gregory Lee Johnson, will present their case.
  • The Supreme Court justices may interrupt presentations of petitioners and respondents to ask questions.
  • The justices will conduct their deliberations in front of the class.
  • The media will report the final vote.
  • A debriefing will be held after the final vote of the justices.

Step 6: The debriefing
The following questions can be used in follow-up class discussion of the moot court:

  • What arguments did the Dallas district attorney present? Which were the strongest? Which were the weakest?
  • What arguments did the attorneys for Johnson present? Which were the strongest? Which were the weakest?
  • What arguments were not presented?
  • What questions do you wish the justices had asked? Which justice asked the most perceptive questions?
  • Which arguments seemed to influence the justices most?
  • What was the court’s opinion? What was the dissenting opinion? Do you think the majority decision was a good decision?
  • What implications does this ruling have for future controversies over symbolic speech, prompted by such possible actions as the wearing of a shirt bearing the image of a swastika or a Confederate flag or the exhibition of a KKK pin?
  • How informative were media reports on the case? Do you think the media helped frame the issue before the case was decided? How well did they explain the decision afterward? (The public is unseen in this moot court simulation.)

Step 7: The Supreme Court’s decision
According to the U.S. Constitution, it is the duty of the judicial branch to interpret the law, and the Supreme Court has the final say concerning constitutional interpretation. The 1803 case of Marbury v. Madison established the principle of judicial review. Since then, the courts have exercised judicial review to declare unconstitutional any federal or state laws or policies that violate rights, rules or principles established by the Constitution.

By a 5-4 vote in Texas v. Johnson, the Supreme Court ruled that flag-burning was protected by the First Amendment, as long as there was no danger of “rioting or other breach of peace.” It also found that the government’s interest in preserving the flag as a national symbol of unity did not justify Johnson’s criminal conviction for engaging in political expression.

Justice Brennan, author of the court’s majority opinion, wrote:
“We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents. … The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.”  To learn more, read the full text of Texas v. Johnson.

Justice Kennedy, concurring with the majority, wrote:
“But whether or not he [Johnson] could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution.”

Chief Justice Rehnquist wrote the minority, or dissenting, opinion:
“The cry of ‘no taxation without representation’ animated those who revolted against the English Crown to found our Nation — the idea that those who submitted to government should have some say as to what kind of laws would be passed. Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of the people — whether it be murder, embezzlement, pollution, or flag burning.”  To learn more, read the full text of Texas v. Johnson.

Step 8: The paper
Assign students to write position papers presenting and defending their positions on flag-burning. Ask students to add a personal note after the formal paper in which they indicate whether they have changed or modified their viewpoint about this controversial topic, now that they have completed research and heard all the arguments.

Enrichment

  1. Many people, including such leaders as then-President George Bush, were outraged by the Supreme Court’s decision. “Flag-burning is wrong, dead wrong, and the flag of the United States is very, very special,” said Bush. Congress then passed a law making flag burning illegal. The Supreme Court struck down the Flag Protection Act of 1989 in 1990, by a 5-4 vote.

    Since that time, local and state jurisdictions have responded, as has Congress. Research your state’s flag protection laws.

  2. Flag-burning is a form of speech that is protected by the First Amendment — for the time being. As reported in the First Amendment Center’s State of the First Amendment 2000  a telephone survey of 1,015 adults conducted in April 2000, the country remains split on the issue of a flag-burning amendment, but for the first time a majority (51%) opposes it. Even so, 74% think flag-burning as a form of political expression is wrong.  It is possible that another court or another Congress could decide or vote differently and place desecration of the United States flag in a different category from most symbolic speech.

    Research to find out what actions Congress has taken regarding:
    A constitutional amendment on flag-burning
       A constitutional amendment would basically say: “Congress shall have the power to prohibit physical desecration of the flag of the United States.” Who supports a constitutional amendment? Who opposes an amendment? What are the arguments for and against it?

    A congressional resolution on flag-burning
       In addition to proposing a constitutional amendment, Congress has proposed resolutions. What is the purpose and impact of a resolution? You may wish to begin your search with a Concurrent Resolution: “Expressing the sense … that Congress … prohibit the desecration …” or with House Joint Resolution 33: Constitutional Amendment to prohibit the physical desecration of the flag of the United States.

  3. Define “desecration.” If flag desecration becomes illegal, how will we decide what forms of desecration are prohibited? Will the law apply only to burning? Or will it include trampling on the flag? Hanging the flag upside down? Using a flag motif as a design for boxer shorts or bikini underwear? Ask students how they would describe “illegal” desecrations of the U.S. flag. They should defend their answers in a way that is consistent with First Amendment principles.

    The Smithsonian Institution in May 1999 began a three-year, $18 billion project to clean and conserve the Star-Spangled Banner that flew over Ft. McHenry. One of the few 15-star, 15-stripe flags remaining, the wool flag had deteriorated due to oxidation, air pollution, temperature change and exposure to light. The Ralph Lauren corporation gave $13 million towards the repair. Do students believe the Smithsonian Institution should have accepted a contribution from the manufacturer of products that include the flag in their design?

  4. The Confederate flag: Heritage or hate speech?
    Let’s get a closer look at the First Amendment’s protection of speech in another issue involving a flag. In February 2000, The First Amendment Center held a conference titled “The Confederate Flag: Heritage or Hate Speech?” Read the report of the panel, “South Carolina’s display of Confederate flag sparks debate over symbolism, speech.” Many points of view are presented. You may assign different points of view to pairs of students to research further, then hold your own symposium on the topic. Ken Paulson, First Amendment Center executive director, noted the issues involving the Confederate flag represent a “festival of the First Amendment.”

    John Seigenthaler, panel moderator and First Amendment Center founder, said, “the issue of the Confederate flag flying over South Carolina statehouse represented just one of the many controversies involving the display of the rebel banner.” Visit freedomforum.org to begin your search of the many issues involving the Confederate flag.

  5. Discuss the history, connotations and symbolism of the Confederate flag as explored through cartoons. View The Confederate Flag collection on Daryl Cagle’s Professional Cartoonists Index. The site provides “Stars and Bars message board” for visitors who wish to comment.

  6. The New York Times Learning Network provides a lesson on symbols appropriate for grades 6-12. “Stars and Bars Forever includes discussion of the Confederate flag and the controversy revolving around its use as the South Carolina state flag. If you use this lesson, include a review of the First Principles, a discussion of balancing government interests, and the ethical implications of First Amendment freedoms.

Resources:

On the Web
The Flag Desecration Amendment
Site includes a timeline of the history of flag protection, 1998-current coverage of the issue, commentary from the First Amendment Center and other news sources and other resources.

Flag Desecration Chronology
Timeline from 1777-1990.

Protect the Freedom Our Flag Stands For
People for the American Way site that includes March 20, 2000, statement of General Colin Powell against an amendment, a past TV ad to view, myths about and consequences of an amendment.

The Flag Amendment
American Society of Newspaper Editors links on a proposed flag amendment include a sampling of editorials from newspapers around the United States.

On the American Civil Liberties Union Web site, search “Flag Desecration” for links to articles and press releases.

Citizens’ Flag Alliance, Inc.
Web site of a “group of individuals and organizations in favor of an amendment to the United States Constitution that will return to ‘We the people’ the freedom to protect the U.S. Flag from desecration.” Includes issues, news and vote of each senator on the latest flag amendment proposal. The American Legion Web site links to this site.

National Society of the Sons of the American Revolution
Includes flag etiquette and rules for displaying the U. S. flag.

The Flag Burning Page
Warren S. Apel has compiled an extensive bibliography that will assist any researcher; a collection of essays, articles and commentary; history and latest update. A cautionary note: Viewers may burn a virtual flag on this site.

This site discusses who designed the flag, why Betsy Ross may have been selected to sew it.

Congressional Record Index
Type “flag desecration” for search term. You will locate editorials and articles, addresses and debate scripts, court documents and letters that have been included in the Congressional Record on the issue of flag desecration and a flag amendment from the Congressional Record.

Images of the American Revolution
A lesson for history, government and art teachers from the National Archives and Records Administration. Provides background for the study of the Constitution.

On the Web and video
In a half-hour program, “Profiles of Freedom,” students debate four Supreme Court cases involving freedoms of speech and assembly, flag burning and due process. Activities and links provided.

For Which It Stands: Flag Burning and the First Amendment
Joey Johnson, defendant in Texas v. Johnson, and former Vietnam POW Eugene “Red” McDaniel provide two views on this issue.

CD
Goldman, Jerry. The U.S. Supreme Court’s Greatest Hits. CD-ROM. Multimedia: audio, images, text. 1999.
Developed and edited by Jerry Goldman, Northwestern University professor and developer of OYEZ Web site. Contains more than 70 hours of the actual oral argument in 50 of the most significant constitutional cases, searchable by name, date and participation of justices. Cases include Lee v. Weisman, Miller v. California, Texas v. Johnson, Tinker v. Des Moines Ind. Comm. School Dist.

In print
Goldstein, Robert Justin, ed. Desecrating the American Flag: Key Documents of the Controversy from the Civil War to 1995. Syracuse University Press. 1996.

Jay, Robert. The Trade Card in Nineteenth-Century America. An in-depth reference work on trade cards. Illustrated. 1987. Available from the Trade Card Collector's Association.

McLoughlin, William G., compiler. “Trade Cards,” American Heritage. February 1967. Informative with excellent color illustrations.

Miller, J. Anthony. Texas v. Johnson: The Flag-Burning Case (Landmark Supreme Court Cases. Enslow Publishers, Inc. 1997. Young adult.

Raskin, Jamin B. We The Students: Supreme Court Cases For and About Students. Washington, D.C.: CQ Press. 2000.

Robinson, Marilyn, and Christopher Simoni, compil. The Flag and the Law: A Documentary History of the Treatment of the American Flag by the Supreme Court and Congress. New York: William S. Hein & Company. 1993.

National Standards
United States History, Standard 8: Understands the institutions and practices of government created during the Revolution and how these elements were revised between 1787 and 1815 to create the foundation of the American political system based on the U.S. Constitution and the Bill of Rights.

Civics, Standard 8: Understands the central ideas of American constitutional government and how this form of government has shaped the character of American society.

Civics, Standard 9: Understands the importance of Americans sharing and supporting certain values, beliefs, and principles of American constitutional democracy.

Civics Standard 18: Understands the role and importance of law in the American constitutional system and issues regarding the judicial protection of individual rights.

Benchmarks
United States History Standard 8, Grades 9-12: Understands the Bill of Rights and various challenges to it (e.g. arguments by Federalists and Anti-Federalists over the need for a Bill of Rights, the Alien and Sedition Acts, recent court cases involving the Bill of Rights.

Civics Standard 8, Grades 6-8: Knows opposing positions on current issues involving constitutional protection of individual rights such as limits on speech (e.g., "hate speech," advertising), separation of church and state (e.g., school vouchers, prayer in public schools), cruel and unusual punishment (e.g., death penalty), search and seizure (e.g., warrantless searches), and privacy (e.g., national identification cards, wiretapping).

Civics, Standard 9, Grades 3-5: Knows how various symbols are used to depict Americans' shared values, principles, and beliefs and explain their meaning (e.g., the flag, Statue of Liberty, Statue of Justice, Uncle Sam, great seal, national anthem, oaths of office, mottoes such as E Pluribus Unum); Grades 6-8: Identifies fundamental values and principles that are expressed in basic documents (e.g., Declaration of Independence, United States Constitution), significant political speeches and writings (e.g., The Federalist, King's "I Have a Dream" speech), and individual and group actions that embody fundamental values and principles (e.g., suffrage and civil rights movements); Grades 9-12: Understands the interdependence among certain values and principles (e.g., individual liberty and diversity).

Civics Standard 18, Grades 9-12: Knows historical and contemporary practices that illustrate the central place of the rule of law (e.g., submitting bills to legal counsel to insure congressional compliance with constitutional limitations, higher court review of lower court compliance with the law, executive branch compliance with laws enacted by Congress); Understands how the rule of law makes possible a system of ordered liberty that protects the basic rights of citizens.

Interdisciplinary connections
Government teachers may use this lesson to discuss the balance of power between judicial and legislative branches. Select key cases from the timeline (see Resources section) for lower court and Supreme Court decisions. Study flag desecration acts (perhaps the one from your state) and proposed amendments to the Constitution of the United States.

Government teachers may use this lesson to discuss the balance and tension between federal and state authority. What happens when state laws appear to conflict with Supreme Court decisions? Justice William J. Brennan Jr. encouraged advocates of civil liberties to focus on state courts and constitutions for protection of basic rights. Study your state’s flag protection laws and any legal action within your state.

Journalism teachers could use this lesson to introduce editorial writing or column writing unit.  After you have established the facts of the case, study the traditional editorial format. The Citizens Flag Alliance, in favor of a flag protection amendment, offers suggestions for writing an Opinion-Editorial.

Debate teachers may use the lesson to give students practice in arguing both sides of an issue.

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