Chapter

Rights, Duties, and the Flag

George P. Fletcher

in Loyalty

Published in print August 1995 | ISBN: 9780195098327
Published online October 2011 | e-ISBN: 9780199852901 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780195098327.003.0007
Rights, Duties, and the Flag

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In the course of the twentieth century, flag desecration came to be understood as symbolic speech offensive to observers. In 1989, the Supreme Court declared state legislation prohibiting flag desecration unconstitutional on the grounds that causing offense does not override freedom of expression. In response, Congress passed legislation prohibiting flag desecration as inherently wrong, even in private. In 1990, the Supreme Court, unable to accept an arbitrary statue, interpreted the law as preventing offense and declared it unconstitutional. Viable flag protection legislation must be directed at the means in which the message is expressed rather than at the message. Such legislation could be based upon a neutral interest in protecting rituals that promote national solidarity. Three strategies for implementing legislation to protect the flag are the insistence on the use of “effective alternative means” of communication, developing a collective sense of public decency and defining the duties of respect that the individual owes the community.

Keywords: flag burning; flag desecration; flag protection; symbolic speech; offensive speech; duty of respect; public decency; freedom of expression

Chapter.  10288 words. 

Subjects: Moral Philosophy

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