Under the 1st Amendment of the US constitution American’s are allowed freedom of speech. The Supreme Court clarified this issue through several rulings concerning 1st amendment rights and the American flag. Desecrating, disrespecting, or damaging the US flag is considered a symbol of self-expression or speech. Despite the meaning and symbol the American flag represents, destroying the flag does not violate the law. Citizens cannot be punished for this as indicated by the US constitution. As a result, people who burn, damage, or destroy the US flag are protected by the 1st Amendment.
In Spence v Washington (1974) the appellant desecrated the American flag by designing a peace symbol over the stars and stripes. The flag was owned by the appellant, there was no demonstration or speech made, and the flag was not destroyed. Despite these facts, the court found that the State of Washington had, “impermissibly infringed protected expression”, (Spence v. Washington, 1974). The case makes a valid point defining flag desecration as a form of self-expression and is recognized as a symbol of speech. US v. O’Brien (1968) also upheld the 1st Amendment, citing that the law cannot “single out for special treatment persons engaged in protest”, (US v O’Brien, 1968). In this case, O’Brien burned his draft letter in protest of the Vietnam War. Although he was protected by the 1st Amendment, O’Brien was prosecuted for burning a government document. This letter was associated with military enlistment and held critical and useful information. Later, in US v Eichman (1990) the Supreme Court turned down Congress’s Flag Protection Act of 1989. Their reasoning for this was that, “the mere destruction or disfigurement of a symbol’s physical manifestation does not diminish or otherwise affect the symbol itself”, (US v Eichman, 1990). Although burning the flag may provoke emotional feelings, it is essentially harmless. It does not affect the government or what it represents. Congress then has no real justification to protect this symbol.