Burning the American Flag in Protest

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Burning the American Flag in Protest

Photograph

By: Anonymous

Date: c. 1969

Source: Photo by Hulton Archive/Getty Images.

About the Photographer: This photograph is part of the collection at Getty Images, a worldwide provider of visual content materials to such communications groups as advertisers, broadcasters, designers, magazines, news media organizations, newspapers, and producers. The identity of the photographer is not known.

INTRODUCTION

France added the Southeast Asian country of Vietnam to its empire in the late nineteenth century. After World War II, Vietnamese nationalism (the desire for an independent nation-state) and Communism led to increasing military resistance to the French colonial presence, which was gradually withdrawn. The United States, motivated by fear of what it called a "domino effect" on other Asian countries if Vietnam were to go Communist, became entangled in Vietnam in the 1950s and early 1960s. In 1965, the United States invaded South Vietnam on a large scale; the number of U.S. troops in Vietnam peaked at over 540,000 in March 1969, a few months after this photograph was taken.

Protest against U.S. involvement in the Vietnam War began slowly, but, by the end of the war, it was a major factor in the U.S. decision to withdraw. Millions participated in various protest actions, including writing, speaking, teaching, marches, leaving the country to avoid being drafted, refusal to respond to draft orders, burning of draft cards, the return of military medals to the government, and—rarely but famously—the burning of American flags. In regard to the character of the protest tactics employed by the antiwar movement, it should be noted that, contrary to a myth that has achieved wide currency in U.S. society, there is no contemporaneous historical evidence—no news reports, photographs, films, written testimonials, or audio recordings dating to the war period—to show that antiwar protestors spat on returning Vietnam veterans. If this form of protest occurred, it was rare rather than typical; indeed, anti-war Vietnam veterans were themselves an important vanguard of the protest movement. Flag-burning was also an atypical action, adoption of the flag as a peace-movement symbol being far more common. Nevertheless, as this photograph shows, flag-burning did occur. Such gestures were generally made by the most radical factions of the anti-war movement.

PRIMARY SOURCE

BURNING THE AMERICAN FLAG IN PROTEST

See primary source image.

SIGNIFICANCE

Burning of the flag is a symbolic act designed to shock observers. As philosopher Paul Tillich (1886–1965) has written, "the flag participates in the power and dignity of the nation for which it stands.… An attack on the flag is felt as an attack on the majesty of the group in which it is acknowledged. Such an attack is considered blasphemy." Starting in the late nineteenth century, the offensive nature of flag burning— or, indeed, of any treatment of the flag perceived as insulting—has resulted in the passage of a number of flag-protection laws, several U.S. Supreme Court decisions, and much debate about the nature of free speech.

Between 1897 and 1919, most U.S. states adopted laws banning flag desecration. Early concern centered on uses of the flag in commercial advertising rather than on its immolation in political protests. In 1890, a bill was approved by the U.S. House of Representatives (but not the Senate) that would have made it a crime to "deface, disfigure, or prostitute [the flag] for purposes of advertising." In Halter v. Nebraska (1907), the U.S. Supreme Court upheld the constitutionality of a state law under which a beer company was fined for including an image of the flag on its label.

The first federal anti-flag-desecration law was passed in 1968 in response to flag burnings such as the one shown in this photograph. (Burning is also the traditional method of disposing of a worn flag; anti-desecration laws always declare such burning non-criminal.) The new law specified up to a year in jail for anyone who "knowingly casts contempt upon any flag of the United States by publicly mutilating, defiling, burning or trampling upon it." A number of challenges to the law were brought in court. In Street v. New York (1968), the Court struck down the conviction of a flag-burning protestor and stated that "the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous," is guaranteed by the First Amendment to the Constitution, which states, in part, that "Congress shall make no law …abridging the freedom of speech." In Smith v. Goguen (1974), the Court also raised questions about what constitutes an actual flag. These questions would also arise in later cases before the Court, and continue to be raised by opponents of anti-flag-desecration laws: is a piece of colored cloth with thirteen stripes and thirty-nine stars a flag for the purposes of the legislation? What about twelve stripes and fifty stars? What about a red, white, and green flag, or a pencil sketch of a flag, or a piece of white paper with the words "This Is An American Flag" written on it? If symbolic acts or statements other than flag desecration are found to be equally offensive, can they be banned as well?

In 1989, the latest phase of political pressure for federal anti-desecration action began after the U.S. Supreme Court struck down a Texas flag-desecration law in Texas v. Johnson. The Court said that flag-burning, regardless of how offensive it might be to some persons, was symbolic speech, therefore protected by the First Amendment. In less than a month, Senator Robert Dole (Republican, Kansas) introduced a bill that would amend the Constitution to ban flag desecration. The amendment did not pass the U.S. Senate, but other senators introduced the Flag Protection Act of 1989, which quickly passed both houses of Congress. In 1990, in United States v. Eichman, the U.S. Supreme Court overturned the Act.

Since 1990, the U.S. House of Representatives has voted by large majorities six times to approve a flag-desecration amendment, but in every case the bill has failed to pass in the U.S. Senate by a small margin (or has not made it to a vote). The proposed amendment would read, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." The U.S. House approved a flag-desecration amendment employing this wording in 2005, and the U.S. Senate will vote on the measure in 2006. If such an amendment ever passes, it must still be ratified by three-fourths of U.S. state legislatures to become the Twenty-Eighth Amendment