GOP senator introduces constitutional amendment to ban flag burning

GOP Sen. Steve DainesSteven (Steve) David DainesSenate committee advances bipartisan energy infrastructure bill  Hillicon Valley: Lina Khan faces major FTC test | Amazon calls for her recusal | Warren taps commodities watchdog to probe Google Senators propose bill to help private sector defend against hackers MORE (Mont.) on Monday reintroduced a constitutional amendment to bar the "physical desecration of the American flag."

“The American flag is a symbol of liberty and a beacon of hope. It represents the ideals that our nation was built upon and for decades, brave men and women have carried its colors into battle to defend the United States of America,” the Montana senator said in a statement released on Flag Day.

“The Stars and Stripes are a representation of freedom. We must always protect and respect the American flag,” he added.


Daines has introduced this amendment two times before.

The measure was co-sponsored by Republican Sens. Marsha BlackburnMarsha BlackburnBiden officials pledge to confront cybersecurity challenges head-on Biden's misinformation crackdown spotlights partisan divide on content reform White House looks to cool battle with Facebook MORE (Tenn.), Mike CrapoMichael (Mike) Dean CrapoHow Sen. Graham can help fix the labor shortage with commonsense immigration reform Lobbying world On The Money: Biden fires head of Social Security Administration | IRS scandals haunt Biden push for more funding MORE (Idaho), Shelley Moore CapitoShelley Wellons Moore CapitoOfficials warn of cybersecurity vulnerabilities in water systems Graham, Hawley call on Judiciary Committee to hold hearing on US-Mexico border GOP senators urge Biden to keep Trump-era border restrictions MORE (W.Va.) and Kevin CramerKevin John CramerTransit funding, broadband holding up infrastructure deal Senate falling behind on infrastructure Bipartisan group says it's still on track after setback on Senate floor MORE (N.D.).

Flag burning, an often controversial form of protest, is considered to be a protected form of self-expression under the First Amendment. In the landmark 1989 Supreme Court case Texas v. Johnson, the court ruled 5-4 that Gregory Lee Johnson, a protester who burned a flag, could express politically charged symbolic speech even if it meant desecrating a national symbol.

Johnson had been convicted under Texas law for burning an American flag while protesting the Reagan administration's policies at the nomination of former President Reagan for a second term. 

Former Supreme Court Justice William Brennan argued that it “would be odd ... that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.”


Brennan added that Johnson had been convicted for “his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.”

Despite the controversial nature of flag burning, the Department of Defense (DOD) actually recommends burning as the proper method of disposing flags, albeit in a highly ceremonial manner. In 1937, the American Legion passed a resolution stating, "The approved method of disposing of unserviceable flags has long been that they be destroyed by burning."

"The U.S. flag is considered such a sacred symbol that burning it in an undignified manner constitutes desecration. That's why the ceremonies are held in a specific manner," the DOD wrote.