Flag Desecration

Discussion Questions

1. All three state courts that ruled on the Wisconsin Janssen case found the state law unconstitutional. Did the courts reach the legally right decision?

2. What is “overbreadth” and why does it make a law invalid?

3. The Wisconsin Supreme Court did not say what Janssen did was legal, rather, they said the law involved was a bad law and they could not enforce it. How is that different from coming right out and saying what he did was legal? Why would the court make this distinction?

4. Would you vote for an amendment to the Constitution that allowed the federal government to jail and fine people who burned the flag in a political protest? Why or why not? Give support for your answer.

5. Scholars have found that flag desecration is very rare—perhaps occurring eight times a year, and that laws against it are very rarely enforced. Is it important to have a flag desecration law? Why? What good might come from such a law? What bad might result from such a law?

6. The Bill of Rights (first ten amendments to the Constitution) was enacted in part to protect citizens against government abuse of power. Is it an abuse of power for the government to ban words or ideas it believes are bad or dangerous? Why or why not? Support your answer.

7. Would you be offended it someone in your town burned a flag to protest a government policy you also disagreed with strongly? Would you be offended if someone in your town burned a flag to protest a government policy you agreed with strongly? Does the fact that someone is offended or not offended matter to whether or not someone is allowed to say something?

8. Suppose a constitutional amendment protecting the flag from physical desecration were passed. What will happen when someone convicted under that law appeals on grounds of vagueness or overbreadth? Who will decide if the language of the law is too vague or covers protected speech? Who will decide if the symbol involved counts as a flag or not? Who will decide whether the action counts as desecration or not? What are the most important factors they should consider in making their decision?

9. One commentator has said that flag burning is essentially the same as flag waving—using the flag for political motives—and thus, if one is protected, so must the other. If I can wave the flag to support my candidate, you can burn the flag to protest my candidate. Do you agree? Why or why not?