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High court rulings led to quest for flag-burning amendment

(CNN) -- Efforts in Congress to pass an amendment to the U.S. Constitution that would allow it to outlaw the physical desecration of the American flag began in response to a 1989 decision by the U.S. Supreme Court.

The court voted 5-4 in Texas v. Johnson that a man arrested for burning a flag during a protest outside the 1984 Republican National Convention was protected by the First Amendment of the Constitution.

It said burning the flag was "expressive" and "overtly political."

"The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved," then-Justice William J. Brennan wrote for the majority. He was joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia and Anthony Kennedy.


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"The First Amendment literally forbids the abridgment only of 'speech,' but we have long recognized that its protection does not end at the spoken or written word. While we have rejected 'the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea…' we have acknowledged that conduct may be 'sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,'" Brennan wrote.

The court rejected Texas's claim that its law banning flag desecration was needed to prevent breaches of the peace and to preserve the flag as a symbol of nationhood and national unity.

Following that ruling, the U.S. government enacted the Flag Protection Act of 1989, which made it a crime to knowingly mutilate, deface, physically defile, burn, or trample a U.S. flag.

The Supreme Court again ruled that burning a flag is protected expression in the 1990 United States v. Eichman decision. The ruling struck down the Flag Protection Act.

That led Congress to propose a constitutional amendment to protect the flag.

It reads: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

The proposed amendment has failed to get the two-thirds majority needed for passage four times since 1989.

If the amendment does clear Congress, it would still have to be ratified by three-fourths of the state legislatures.


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