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Landmark US Flag Burning Case Marks 25th Anniversary

Saturday, June 21, marks the 25th anniversary of a landmark Supreme Court decision on free speech.

By a vote of five to four, the high court ruled that burning the American flag as a form of political protest was a protected act of free speech under the U.S. Constitution. The decision was controversial at the time and for some remains so today.

The 1989 Supreme Court case on flag burning was set in motion by the actions of Gregory Johnson. He was among a group of demonstrators at the 1984 Republican National Convention in Dallas, Texas, where President Ronald Reagan was nominated for a second term.

During a protest denouncing Reagan administration policies, Johnson set fire to an American flag. He was arrested and charged with violating a Texas law on flag desecration. Flag burning was often part of anti-war and anti-government demonstrations during the 1960s and early 1970s.

Johnson appealed his conviction and the case went to the Supreme Court. In 1989, by a five to four vote, the high court ruled flag burning is legally protected by the First Amendment of the U.S. Constitution, which guarantees Americans' freedom of speech.

The Johnson decision was hailed as a landmark case expanding the rights of free speech.

“I do think it says a lot positive about American ideals to be able to say, as the court did and as the people have effectively agreed, that you can even take the symbol of our country and burn it and still not be prosecuted for that,” said attorney Elliot Mincberg of People for the American Way.

However, 25 years later, the flag-burning case still evokes strong emotions, especially among military veterans who see the American flag as a vital symbol of democracy.

“The American flag is more than just a piece of cloth," said retired U.S. Army Master Sergeant Louis Celli, legislative director for the American Legion, the largest veterans group in the United States. "It is representative of the sacrifices of the American soldiers. It is representative of the triumphs and also of the struggles of the American people over the course of over 200 years.”

Celli hopes to convince Congress to protect the flag through enactment of an amendment to the U.S. Constitution. That requires the support of two-thirds of the Senate and House of Representatives and three-quarters of the 50 U.S. states.

“It is not just the veterans that would be voting on this," he said. "It is the American people and again, overwhelmingly, we find that the American people would support such an amendment.”

A 2006 public opinion poll found 56 percent of those surveyed supported a constitutional amendment to protect the flag, less than the high of 71 percent in a poll shortly after the Supreme Court ruling in 1989.

Free speech advocates like Elliot Mincberg consider the flag-burning case settled law and do not see the kind of political momentum now that would lead to a constitutional amendment.

“The American Constitution protects the right of all citizens to disagree, to peacefully protest, even some of the more important symbols of our republic, and that protection is what provides the freedom that Americans so cherish, here and around the world,” Mincberg said.

But the American Legion's Celli says his group will continue to fight.

“To make sure that the people now have the choice to vote on a constitutional change that will protect the symbol of the United States of America,” he said.

Celli hopes to convince the next Congress, beginning in 2015, to consider the flag amendment.

In the years following the Supreme Court ruling, several attempts to pass an amendment protecting the flag from desecration failed.

The most recent attempt came in 2006 when the measure was passed by the House, but defeated in the Senate by a single vote.
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    Jim Malone

    Jim Malone has served as VOA’s National correspondent covering U.S. elections and politics since 1995. Prior to that he was a VOA congressional correspondent and served as VOA’s East Africa Correspondent from 1986 to 1990. Jim began his VOA career with the English to Africa Service in 1983.

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