Talking Points

FAQs

Question:
Is flag burning protected as symbolic speech by the First Amendment?

Texas	Johnson
1. Can the government prohibit the act of flag burning as an infringement on the Free Speech Clause of the First Amendment?
Affirmative. Yes. The Court has interpreted the First Amendment to grant a higher level of protection to speech than it grants to conduct because not all conduct is considered a form of speech. The First Amendment does protect symbolic speech, but some actions do not always rise to the level of “symbolic speech” so as to require protection under the First Amendment. Flag burning is the destruction of a symbol of national unity. Even if the flag that is destroyed is private property, the government has a legitimate interest in regulating its protection because of what the flag represents to the nation. Lines must be drawn when it comes to expressive speech to make sure that otherwise criminal conduct is not couched in “First Amendment” terms.	Negative. No. The Court has recognized that the First Amendment protects certain forms of symbolic speech. Flag burning is such a form of symbolic speech. When a flag is privately owned, the owner should be able to burn it if the owner chooses, especially if this action is meant in the form of protest. So long as public and/or the property of others is not destroyed in the process (or there is a danger to others by setting the flag on fire), the government cannot prohibit this action without infringing upon free speech rights.
2. Should flag burning as symbolic speech be prohibited as an exception to the First Amendment’s free speech protections?
Affirmative. Yes. Even though the First Amendment protects symbolic speech, an exception should be made to prohibit burning of the flag. The flag is a symbol of national unity that represents the ideals for which the United States stands. Moreover, it honors those who died in defense of this country. The protection of these concepts, as represented in the flag, constitute a compelling governmental interest that justifies a ban on flag burning/desecration.	Negative. No. As noble as the argument is, the First Amendment does not recognize an exception for prohibitions on burning the flag. When the defendant burned the flag in this case, he was making a political statement, i.e., he did not agree with the policies of the United States government. Moreover, as ironic as it sounds, by being able to burn the flag, the defendant (and other persons like him) is actually honoring the values the flag is meant to protect. For instance, the flag represents freedom of speech, including giving protections to those who desecrate it. On a more practical note, why should this one action be excepted from the First Amendment’s protections? Could, or should, other exceptions be made? Who would make these decisions?
3. Should the allowance of flag burning depend upon the reasons for, and potential reactions to, the act?
Affirmative. Yes. The Texas Act permits the destruction of worn-out flags in a prescribed manner. The Act also acknowledges that prosecutions of flag-burning only occur when this action would be likely to offend others. Although it is argued that the state may have an absolute right to prohibit flag burning, Texas has chosen to limit its proscriptions. For instance, it would permit private burnings, perhaps even in the midst of like-minded individuals. It does not, however, permit flag burning in public when this would be likely to incite others. The state realizes that this action triggers strong emotions in some and may lead to violence. The State has a compelling interest in prohibiting flag burning in order to keep the peace. The State permits respectful burnings of worn-out flags because there is not much chance that this action will lead to violent outbursts.	Negative. No. The Texas Act clearly discriminates on the basis of viewpoint. It allows respectful, but not disrespectful, destruction of the flag. Its antipathy toward disrespectful destruction of the flag is further highlighted by the fact that it prohibits actions that are likely to offend others. First Amendment rights cannot be based on the reaction of others. The First Amendment is meant to protect unpopular ideas. The First Amendment would be undermined if unpopular speech were disallowed.

Texas

Johnson

1. Can the government prohibit the act of flag burning as an infringement on the Free Speech Clause of the First Amendment?

Affirmative. Yes.

The Court has interpreted the First Amendment to grant a higher level of protection to speech than it grants to conduct because not all conduct is considered a form of speech. The First Amendment does protect symbolic speech, but some actions do not always rise to the level of “symbolic speech” so as to require protection under the First Amendment. Flag burning is the destruction of a symbol of national unity. Even if the flag that is destroyed is private property, the government has a legitimate interest in regulating its protection because of what the flag represents to the nation. Lines must be drawn when it comes to expressive speech to make sure that otherwise criminal conduct is not couched in “First Amendment” terms.

Negative. No.

The Court has recognized that the First Amendment protects certain forms of symbolic speech. Flag burning is such a form of symbolic speech. When a flag is privately owned, the owner should be able to burn it if the owner chooses, especially if this action is meant in the form of protest. So long as public and/or the property of others is not destroyed in the process (or there is a danger to others by setting the flag on fire), the government cannot prohibit this action without infringing upon free speech rights.

2. Should flag burning as symbolic speech be prohibited as an exception to the First Amendment’s free speech protections?

Affirmative. Yes.

Even though the First Amendment protects symbolic speech, an exception should be made to prohibit burning of the flag. The flag is a symbol of national unity that represents the ideals for which the United States stands. Moreover, it honors those who died in defense of this country. The protection of these concepts, as represented in the flag, constitute a compelling governmental interest that justifies a ban on flag burning/desecration.

Negative. No.

As noble as the argument is, the First Amendment does not recognize an exception for prohibitions on burning the flag. When the defendant burned the flag in this case, he was making a political statement, i.e., he did not agree with the policies of the United States government. Moreover, as ironic as it sounds, by being able to burn the flag, the defendant (and other persons like him) is actually honoring the values the flag is meant to protect. For instance, the flag represents freedom of speech, including giving protections to those who desecrate it. On a more practical note, why should this one action be excepted from the First Amendment’s protections? Could, or should, other exceptions be made? Who would make these decisions?

3. Should the allowance of flag burning depend upon the reasons for, and potential reactions to, the act?

Affirmative. Yes.

The Texas Act permits the destruction of worn-out flags in a prescribed manner. The Act also acknowledges that prosecutions of flag-burning only occur when this action would be likely to offend others. Although it is argued that the state may have an absolute right to prohibit flag burning, Texas has chosen to limit its proscriptions. For instance, it would permit private burnings, perhaps even in the midst of like-minded individuals. It does not, however, permit flag burning in public when this would be likely to incite others. The state realizes that this action triggers strong emotions in some and may lead to violence. The State has a compelling interest in prohibiting flag burning in order to keep the peace. The State permits respectful burnings of worn-out flags because there is not much chance that this action will lead to violent outbursts.

Negative. No.

The Texas Act clearly discriminates on the basis of viewpoint. It allows respectful, but not disrespectful, destruction of the flag. Its antipathy toward disrespectful destruction of the flag is further highlighted by the fact that it prohibits actions that are likely to offend others. First Amendment rights cannot be based on the reaction of others. The First Amendment is meant to protect unpopular ideas. The First Amendment would be undermined if unpopular speech were disallowed.

Audience Participation

The program moderator will decide at appropriate times during the oral arguments to open the floor to the audience for 20-30 minutes. This is time for the audience to join in the arguments, ask questions, and take positions on the issues. After a debate question has been fully responded to by both sides, and when the audience seems eager to become involved, the moderator may call for an open floor discussion during which students volunteer to speak on the questions just argued by the teams.

Any audience member may stand and make a comment or pose a question to the moderator who will direct it to the following, in this order:

Different debate team members.
Students in the audience without putting a specific student on the spot.
The adult attorneys.
Questions for the host judge are put on hold until the debriefing at the conclusion of the program.

The audience will observe the following four rules:

Students will abide by the guidelines for civil discussion.
Any audience member may speak only once until everyone who wishes to voice an opinion has had one opportunity.
Students direct questions and comments to the moderator, who refers them to different debaters on a rotating basis so that one team member does not answer all or most of the questions.
The moderator holds student questions until the program debriefing.