The Controversy Over Desecrating The American Flag

There has been a lot of controversy across the USA about the new fad called the Eric Sheppard Challenge - the challenge for people to walk on the American flag in disrespect of our nation, support for a wanted college student who associates with the New Black Panther party and, frankly, sheer idiocy.

By walking on our flag these people seem to think they're protesting white privilege. What they're really doing is disrespecting the very nation and laws that give them the freedom to say and do whatever they wish - good or bad, right or wrong.

Most people in the United States, particularly those who have worn the uniform of our armed services, do not sympathize with these "protesters" nor respect their actions. In fact - most of us who have served see this as a treasonous act that should be punishable by imprisonment, at the very least.

These people wan sympathy and support for their cause (whatever that is - it's difficult to understand) but they go about it by disrespecting America and her people. Their actions gain about as much support as those of the protesters in Ferguson and Baltimore, who seek to gain sympathy through arson and looting. It makes no sense whatsoever and doesn't really conjure up a lot of sympathy.

But is it legal?

There has been controversy over this topic for a long, long time. In 1907 , the first case concerning disrespect for the flag made it to the Supreme Court. In the case of Halter v. Nebraska, the state of Nebraska had prohibited two businessmen from selling beer with an American flag on the label. They sued and lost. They appealed and lost. The case made it to the Supreme Court who ruled in favor of the state. Over the years 48 of the 57 - sorry, my bad 50 states passed laws against desecrating or burning the American flag.

In 1931 the Supreme Court took a step toward making the flag a free speech item when they struck down a California law that made it illegal to display a red flag as a sign of protest against the government.

In 1968, Congress passed the Federal Flag Desecration Law after Vietnam protesters began regularly burning flags in protest to the war. That law was in effect until 1989, when the Supreme Court heard the case of Spence v. Washington, in which they ruled it was legal for a person to use tape to put a peace sign on an American flag. The court majority decided that this type of action was protected as free expression, offensive or not.

Another case that brought about a Supreme Court decision allowing the desecration of the flag was Texas vs Johnson. In 1984, in protest of the administrative policies of then-President Ronald Reagan, Gregory Lee Johnson burned an American flag outside of the Dallas, Texas, City Hall. He was promptly arrested and convicted and was sentenced to one year in prison and a $2,000 fine. Johnson appealed. Johnson, claiming First Amendment rights, appealed the decision and the Texas Court of Criminal Appeals ruled in his favor and said Johnson's freedom of speech was symbolic.

Then Texas appealed. The case made it to the Supreme Court, who ruled 5-4, in 1989, that Johnson's actions were indeed symbolic of free speech whether or not they were offensive to others.

Justice Anthony Kennedy wrote the majority decision.

“The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result,” Kennedy said. “And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases."

“Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt,” he said.

Chief Justice William Rehnquist wrote the dissent saying “the flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas.”

“I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag,” Rehnquist said.

Congress moved immediately to pass the Flag Protection Act of 1989, which made it illegal for citizens to burn an American flag in protest.

But the Supreme Court struck down that law as unconstitutional with Justice William Brennan saying “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

So far the Supreme Court has held that people do have the right to desecrate our flag if they wish. I don't like it much but it's the law.

The topic is still controversial. As recently as 2006 Congress attempted to pass another law against flag desecration. It failed in the Senate by one vote. I'm not sure why they believe the Supreme Court won't again strike down the law but they're still trying.

As a military veteran, a 30 year employee of the federal government and a patriot who loves my country, if I see someone walking on our flag I will most likely be going to jail. Because I'm going to do my best to take that flag from those who would disrespect it. I served in the military to help protect your right to express your ignorance any way you wish. and I would do it again today. But I won't stand idly by and watch you do something that disrespects not only our flag but every American like me. I'll lose the case in court - as it should be since your rights are protected by law. But I'll make you think twice about it next time.