Flag Day and the First Amendment’s Impact on Old Glory

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Hi, I’m Danny Karon, your Lovable Lawyer, here with your quick shot of legal wellness. Today is Flag Day, the day that commemorates the date in 1777 when the United States approved the design for its first national flag. But not everyone has the same regard for old glory. You see, many Vietnam War protests involved the desecration of the American flag. So, in response, congress passed the Flag Protection Act of 1968. Not only did this act nationalize a 1947 law prohibiting desecration of the American flag in the District of Columbia, it also said that anyone who mutilated, defaced, defiled, burned, or trampled upon the flag was subject to a fine or up to one year in prison. During the next two decades, the act’s critics sought to overturn it, insisting that it was inconsistent with freedom of speech under the first amendment, but lower courts routinely upheld the statute’s constitutionality. The Supreme Court, they declined to review these rulings, but then in 1989, the court heard Texas versus Johnson and in a 5-4 decision, upheld flag burning as a form of protected speech under the first amendment. Well, Congress did not like that so in response, Congress passed the Flag Protection Act of 1989, giving Congress the right to enact statutes criminalizing the burning or desecration of the flag in public protest. A year later, in 1990, this act was challenged in United States vs. Eichmann, another 5-4 decision. There the court struck down the act on the grounds that the government’s interest in preserving the flag as a symbol did not outweigh an individual’s first amendment right to desecrate the flag in protest. While the first amendment continues to protect freedom of speech, its interpretation of this freedom fuels a lot of debate and efforts are still underway to this day in Congress to criminalize flag burning, possibly through a constitutional amendment.

Those are my unfurled remarks about our flag on Flag Day. If you’d like to learn more about legal wellness, please subscribe to my YouTube channel or join me at yourlovablelawyer.com. Until next time, I’m Danny Karon, your Lovable Lawyer.

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