It ruled that although Congress had made an effort to adopt a more content-neutral law, the legislation still limited symbolic speech. Eichman case, overturned this legislation. The constitutionality of this law also came before the Supreme Court. This law makes it criminal to knowingly do any of the following to the American flag:Ī number of people expressed their disagreement with the new law by burning the flag. In response to the Johnson decision, Congress passed the Flag Protection Act. Attempts to Criminalize Flag DesecrationĪfter the Johnson decision, Congress tried to criminalize flag burning through legislation. This decision also struck down national flag desecration laws that existed in 48 states. "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." In this 5-4 decision striking down the law as unconstitutional, the justices stated: The case made its way to the Supreme Court. He was arrested for violating a Texas law that made flag desecration a felony. Johnson, the court ruled that the First Amendment protects burning the flag because the act falls within "expressive conduct." The case started when the defendant, Gregory Johnson, burned the flag to protest the policies of then-President Ronald Reagan. Is Flag Burning Protected by the First Amendment? This is because the government doesn't have a right to decide what ideas or information people are allowed to hear. That means the government can't stop someone from expressing an idea just because most people find it offensive. The court also held that the government generally can't restrict speech based on its content.
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The court interpreted the First Amendment to apply to symbolic expressions such as burning flags, burning crosses, wearing armbands, and the like. Basically, it stated that "speech" covers areas beyond talking and writing.
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The Supreme Court has tried to define "free speech" in several of its opinions. Congress has repeatedly attempted to outlaw flag burning through legislation and constitutional amendments, but none of these attempts have succeeded. Supreme Court has held that the government cannot prohibit citizens from desecrating the American flag.