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Timeline: history of flag protection
By the First Amendment Center

Before the Civil War, the few references to protecting the American flag centered mostly on the flag in its official capacity, such as flying at the bow of an American vessel or above a government building or American embassy. With the outbreak of the Civil War, the flag gained popularity and was frequently displayed in the North as a symbol of the nation.

1862 Gen. Benjamin Butler, military governor of New Orleans, issues a decree prohibiting the display of any symbol representing an authority other than the United States and demands that “the American ensigns … be treated with the utmost deference and respect by all persons, under pain of severe punishment.”

1878 Congress considers and rejects a proposal, H.R. 4305, introduced by Rep. Samuel S. Cox of New York, to ban the use of the flag for commercial advertising. The measure failed because party leaders feared they wouldn’t be able to use the flag in their political campaigns.

1890 The House of Representatives passes a bill, H.R. 10475, aimed at commercial advertising, “to prevent desecration of the United States flag.”

1896 Prominent use of the flag highlights a heated McKinley-Bryan presidential campaign that occasionally sparked violence.

1897 The American Flag Association forms to promote flag-protection legislation. Other groups heavily involved in flag-protection measures include the Daughters of the American Revolution and the Sons of the American Revolution.

1897 Illinois, Pennsylvania and South Dakota are the first states to pass flag-desecration laws. Eventually, every other state except Alaska and Wyoming would follow suit. Congress rejects more flag-protection proposals.

1907 Halter v. Nebraska. The U.S. Supreme Court determines that a Nebraska law forbidding the use of the flag for advertising merchandise — in this case, beer — doesn’t violate the Constitution. The Court, however, considers the case only on due-process grounds and not in regard to the First Amendment. Nonetheless, the ruling is so broadly worded that a First Amendment defense would have been rejected as well, especially when it is taken into consideration that, before 1925, the Court consistently declined to extend First Amendment rights to citizens who challenged state laws.

1917 Amid the passions of World War I, Congress makes the public mutilation of a flag a misdemeanor in the District of Columbia.

1917 The National Conference of Commissioners on Uniform State Laws considers the subject of state flag legislation and adopts the Uniform Flag Act to be submitted to the various state legislatures for adoption.

1917 Flag-protection groups lobby Congress for passage of the Civilian Flag Code, a guideline for displaying the flag and punishing its desecration. The American Legion drafts its Flag Code five years later.

1918 Congress enacts legislation that orders the firing of any federal employee who “when the United States is at war ... in an abusive or violent manner criticizes ... the flag of the United States.” This legislation also provided for punishment of “whoever” engages in such conduct.

1925 Gitlow v. New York. The U.S. Supreme Court suggests for the first time that the First Amendment applies to state laws as well as to federal ones.

1931 Stromberg v. California. The U.S. Supreme Court rules that a state law prohibiting the display of a red flag violates the First Amendment. The Court says posting such a flag is symbolic speech and the peaceful display as part of “peaceful and orderly opposition” to government policies is protected.

1940 Minersville School District v. Gobitis. The U.S. Supreme Court rules that requiring Jehovah’s Witness students to salute the flag and recite the Pledge of Allegiance despite their religious objections does not violate their constitutional rights.

1942 Congress passes a joint resolution to endorse a voluntary common flag-etiquette code, which carries no penalties.

1943 West Virginia State Board of Education v. Barnette. Overruling its own 1940 Minersville decision, the U.S. Supreme Court strikes down laws requiring compulsory flag salutes and recitals of the Pledge of Allegiance by American schoolchildren.

1943 Taylor v. Mississippi. The U.S. Supreme Court determines that the state cannot punish individuals for encouraging students and others who attempt “to create an attitude of stubborn refusal to salute, honor, or respect the national and state flags and governments.”

1968 Congress passes a national flag-desecration law that imposes criminal penalties nationwide on anyone who “knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it.”

1969 Street v. New York. The U.S. Supreme Court overturns the conviction of veteran and Bronze Star honoree Sydney Street, who burned his flag in protest after learning that activist James Meredith had been shot.

1974 Smith v. Goguen. The U.S. Supreme Court overturns the conviction of a teenager who wore a flag patch on his pants, determining that a Massachusetts law prohibiting “contemptuous” use of the flag was vague.

1974 Spence v. Washington. The U.S. Supreme Court overturns the conviction of a man who taped a peace symbol onto his flag.

1989 Texas v. Johnson. The U.S. Supreme Court rules that burning the American flag is a constitutionally protected form of free speech.

1989 Congress passes the Flag Protection Act. The act punishes anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any U.S. flag.”

1990 United States v. Eichman. The U.S. Supreme Court invalidates the Flag Protection Act of 1989. The Court finds that the statute violates free speech.

1990 Only 10 days after the Eichman ruling, the House of Representatives votes against an amendment to the Constitution that would prohibit flag desecration.

1995 After the House votes 312-120 for a flag amendment, the measure fails in the Senate by three votes.

1997 The House approves flag amendment on a 310-114 vote.

1998 A flag-amendment proposal dies in the Senate as Senate leaders fail to get unanimous consent to bring the proposal to the floor.

1999 Reps. Randy “Duke” Cunningham, R-Calif., John Murtha, D-Pa., and John Sweeney, R-N.Y., introduce a proposal to amend the Constitution to allow Congress to enact flag-protection laws. The House approves the bill, 305-124.

2000 The flag amendment falls four votes short of passage in the Senate, 63-37.

2001 Reps. Cunningham and Murtha introduce H.J.R. 36 in the House. Sens. Max Cleland, D-Ga., and Orrin Hatch, R-Utah, introduce S.J.R. 7 in the Senate. H.J.R. 36 passes 298-125. No action is taken on the Senate proposal before the close of the 107th Congress.

2003 Reps. Cunningham and Murtha introduce H.J.R. 4 in the House. Sens. Feinstein and Hatch introduce S.J.R. 4 in the Senate early in the 108th Congress. H.J.R. 4 passes on a 300-125 vote. Again, no action is taken on the Senate proposal.

2005 Reps. Cunningham and Murtha introduce H.J.R. 10 in the House. Sens. Feinstein and Hatch introduce S.J.R. 12.

2007 Rep. Jo Ann Emerson, R-Mo., with 28 cosponsors, introduces H.J.R. 9 in the House early in the 110th Congress. On the same day, Rep. John Murtha, D-Pa., with 70 cosponsors, introduces H.J.R. 12 in the House. Both propose amendments to the Constitution prohibiting flag desecration and remain in the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties.

2008 Sen. David Vitter, R-La., introduces S.J.R. 40, proposing a constitutional amendment prohibiting flag desecration, in the Senate. The bill is referred to the Senate Judiciary Committee.



Implementing a Flag-Desecration Amendment to the U.S. Constitution

Panel spotlights uncertainties over flag amendment
By Eric Nelson National Press Club discussion, featuring speakers both pro and con, wrangles over definition of 'flag,' what constitutes 'desecration.' 06.07.06

The flag amendment: Reverence confronts reason
By Paul K. McMasters When we salute the flag, we salute our commitment to free speech and the right to protest. 06.04.06

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