The Constitutionality of Flag Burning: Hate or Free Speech? An Analysis of Texas v. Johnson
AbstractEver since the Supreme Court handed down its 1989 ruling in Texas v. Johnson allowing desecration of the American flag as protected symbolic speech under the First Amendment, conservative forces in the UnitedStates have fought to pass a constitutional amendment that would make flag desecration a special category of speech subject to regulation by Congress. Arguments for and against a right to flag desecration made by the Supreme Court in the 5-4 Johnson decision and reactions to flag desecration will be discussed, with emphasis on legislators’ and lobbyists’ attempts to pass a flag protection amendment. General theories of free expression, in particular the work of philosopher John Stuart Mill and civil libertarian Alexander Meiklejohn, will show the necessity of supporting a right to flag desecration in a nation based on a concept of government by the people.
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