Having Freedom of Speech
Mean We Can Burn Our Flag?
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
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.
of speech extends to statements with which we may disagree, including
those that are hateful, defiant and contemptuous.
cannot be prohibited because of undesirable actions that may result
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.
have a right to protest government policy.
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
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.
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.
1: Thinking about the flag
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’
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.
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.
2: Symbolic speech
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.
3: The Supreme Court case
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.
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.
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.
4: The assignment
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
an Appeal to the Supreme Court, which outlines the appeals procedure
and suggests preparation for this unit.
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.)
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
the groups the information sheets: Petitioner-Dallas
District Attorney, Respondent-Attorneys
for Johnson, Justices,
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.
5: The moot court
the moot court begins, review the steps to be followed:
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
- 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.
6: The debriefing
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
- 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.)
7: The Supreme Court’s decision
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.
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.
Brennan, author of the court’s majority opinion, wrote:
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
Kennedy, concurring with the majority, wrote:
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.”
Justice Rehnquist wrote the minority, or dissenting, opinion:
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
8: The paper
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.
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.
that time, local and state jurisdictions have responded, as has
Congress. Research your state’s flag protection laws.
is a form of speech that is protected by the First Amendment —
for the time being. As reported in the First Amendment Center’s
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:
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
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.
- 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
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?
Confederate flag: Heritage or hate speech?
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.”
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
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.
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.
On the Web
Flag Desecration Amendment
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.
the Freedom Our Flag Stands For
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.
Society of Newspaper Editors links on a proposed flag amendment
include a sampling of editorials from newspapers around the United
Civil Liberties Union Web site, search “Flag Desecration”
for links to articles and press releases.
Flag Alliance, Inc.
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
Society of the Sons of the American Revolution
flag etiquette and rules for displaying the U. S. flag.
Flag Burning Page
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.
discusses who designed the flag, why Betsy Ross may have been
selected to sew it.
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
of the American Revolution
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
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.
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.
Goldman, Jerry. The
U.S. Supreme Court’s Greatest Hits. CD-ROM. Multimedia:
audio, images, text. 1999.
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
Robert Justin, ed. Desecrating the American Flag: Key Documents
of the Controversy from the Civil War to 1995. Syracuse University
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.
William G., compiler. “Trade Cards,” American Heritage.
February 1967. Informative with excellent color illustrations.
J. Anthony. Texas v. Johnson: The Flag-Burning Case (Landmark
Supreme Court Cases. Enslow Publishers, Inc. 1997. Young adult.
Jamin B. We The Students: Supreme Court Cases For and About
Students. Washington, D.C.: CQ Press. 2000.
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.
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.
Standard 8: Understands the central ideas of American constitutional
government and how this form of government has shaped the character
of American society.
Standard 9: Understands the importance of Americans sharing and
supporting certain values, beliefs, and principles of American constitutional
Standard 18: Understands the role and importance of law in the American
constitutional system and issues regarding the judicial protection
of individual rights.
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.
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
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
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.
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.
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.
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.
teachers may use the lesson to give students practice in arguing
both sides of an issue.
TO HOME PAGE