The Instigator
Pro (for)
The Contender
Con (against)

Should flag burning be legal under the 1st amendment

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Debate Round Forfeited
Alister_Illustratum has forfeited round #4.
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Voting Style: Open Point System: 7 Point
Started: 4/14/2017 Category: Politics
Updated: 3 years ago Status: Debating Period
Viewed: 1,129 times Debate No: 101952
Debate Rounds (5)
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Votes (0)




Rd. 1 Acceptance.
Rd. 2 Initial arguments
Rd. 3, 4, 5 Responses


This is my first time on this site so apologies in advance for anything out of the ordinary. This should be fun.
Debate Round No. 1


I would like to start by thanking my opponent for his acknowledgment of limitations. This too is my first debate on the site. I also thank him for not taking the fun out of it as evidenced in his second sentence.

I would also like to clarify for our audience that this debate is on the subject of American law and the American flag.

I will now issue a disclaimer. I am by no means unpatriotic or anti-American, and I myself take offense to such displays. This debate is not on the subject of whether one should take offense to these displays, but if they should be legal. I will now demonstrate three reasons.

The first, freedom of speech. The First Amendment to the United States Constitution states, "Congress shall make no law...abridging the freedom of speech...." Furthermore, the Constitution also says, "nor shall any state....deny to any person within its jurisdiction the equal protection of the laws." This thus extends the restriction on laws abridging free speech to state legislatures. By banning flag burning, the state or federal government would ostensibly be violating that.

I don't care if you think it is right to do so, this debate is about the LAW.

Second, property rights. If an individual owns an item (even the American flag), he should have the right to do what he wants with it. In a democratic society, which the USA is, the government should not prescribe what people can and cannot do with their property. Many people who are in favor of a ban on flag burning are conservative, and as I come from a conservative family, I saw their hypocrisy firsthand when they were all opposed to the individual mandate in the Affordable Care Act. This was later deemed constitutional by the Supreme Court in National Federation of Independent Business v. Sebelius.

I disagree with the court's decision, and this is because the government shouldn't tell people what to buy (in this case health insurance). Therefore, I would also agree that the government should not tell people what to do with their own property.

And third, the Supreme Court says so. They ruled that the states cannot ban flag burning (Texas v. Johnson) and later that the federal government cannot ban flag burning (United States v. Eichman). The Supreme Court was established by the Constitution (Article III) as the highest arbiter of American law. In short, what they say goes, and if you believe in the Constitution, you would accept the Supreme Court's decision.

I would also like to add (this argument can be disregarded as it is not a legally based argument) that THE reason many Americans venerate our flag as an image is its symbolic value. We do not venerate the flag itself, but the American ideals that it stands for. Many times, I've heard our flag described as "a symbol of freedom." Therefore, I understand that many people, myself included, do not like to see it burned or otherwise desecrated. However, that only constitutes the destruction of a symbol of freedom. Outlawing flag burning would destroy part of those freedoms themselves. And the irony in that is that the government would be lessening the symbolic value of the flag with such action, exactly what advocates wish to avoid.

I eagerly await my opponent's response.


*Note:I should have done my homework before accepting for I did not realize that it was already protected... Hmm, this will be interesting. I will also be assuming that we are not going to be talking about retirement as that is part of flag etiquette.*

My first point in this case is going to be conflicting rules allow for the burning or the flag to be made illegal.
The First Amendment only protects speech which is Constitutionally protected, unprotected speech as defined by, It means speech that is completely subject to governmental regulations. Unprotected speech can be classified into obscenity, fighting words, fraudulent misrepresentation, advocacy of imminent lawless behavior, and defamation. I will be focusing on the obscenity and fighting words parts. The United States flag stands for many things, one of those things is the courage and readiness to sacrifice. This is stands for the American patriotism that allows us to fight so hard for our nation. Many take the red stripe to mean the blood of the fallen who have protected our nations interests both over seas and at home. The desecration of the flag by burning may be seen of as fighting words and an obscenity to those who are fighting and have fought to secure our nation. Since the burning of the flag is seen as fighting words, the burning of the flag falls outside of the protection of the First amendment allowing it to be regulated by the government. This means that each state has the right to place their own laws on flag burning, and since each state may have different laws, this falls out of the jurisdiction of the federal government and the constitution.

My opponent brings up the valid point of property rights, however, that would depend on what laws the States put in place seeing that this is now a State issue. If there are enough people who want to burn flags \ in a state then they can vote to add that to their states bill. This is a democratic nation, let the people of each state vote on what they want.

For the reason that the burning of the flag falls into state jurisdiction and not federal, I ask that you vote that flag burning should not be protected under the First Amendment.

*Took a while to think of that*
Debate Round No. 2


The states are all subject to the federal Constitution, and my opponent did not properly address the Equal Protection Clause, extending the enforcement of freedom of speech to state legislatures.

There are limitations on freedom of speech. I do so concede. But my opponent has taken the ideas of "fighting words" and "obscenity" far out of their context. In the 1969 Supreme Court case Brandenburg v. Ohio, fighting words were defined as speech that could incite lawless action. The court prescribed that such a threat must be a) likely and b) imminent. Speech that could indirectly create problems is still protected.

Let me return to Texas v. Johnson. In the majority opinion, the court concluded that, while "the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word," it may not "proscribe particular conduct because it has expressive elements." (written by Justice William Brennan)

Texas conceded in the aforementioned Johnson case that "no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag," To say that flag burning tends to incite such disturbances is not enough as per Brandenburg v. Ohio.

Justice Anthony Kennedy, in a concurrence (Texas v. Johnson), stated as such: "It is poignant but fundamental that the flag protects those who hold it in contempt," I tend to agree with him, as my opponent and I both agree that the flag stands for freedom. To restrict freedom of expression for a patriotic purpose (and I concede that this is not necessarily what would happen) could be the first step on the path to ultra-nationalism, fascism, and totalitarianism. Note that I am not accusing my opponent of having such political ideologies, I think he is quite reasonable. I am just saying that could lead to problems down the proverbial road.

For example, imagine what would happen if a North Korean citizen burned their flag. This is an extreme case and would never happen in the United States, I am aware. I am just warning that these restrictions are associated with ultra-nationalistic and totalitarian governments. As someone who believes in personal freedom and a democratic society for all of us in this great country, I find it troubling that many Americans are in favor of such restrictions.


My opponent brought up the point of how many ultra-nationalistic and totalitarian government forbid the burning of the flag, this I agree with. We can not simply kill people because they burned our flag. However, my case is not debating that flag burning should be made illegal, but the power to choose their flag laws should be given to the state instead of protected under the first amendment.

The 10th Amendment is as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.". One of these such powers are ownership of property and as my opponent brought up the point that people have the right to do with it as they please. However, the right to decide property laws is given to the state and seeing this, it should be the states decision or more so the people of each state voting on their laws for flag burning seeing as though the flag is property.

For the reason that property laws are the right of the state, the burning of the flag should legally be given to the state and not dictated by the first amendment. Again, I am not arguing that flag burning should be banned, instead, if it were to be protected, it should be protected by the state property laws. For that reason, I urge a vote in the favor of Con, thank you.
Debate Round No. 3


I apologize to my opponent for misunderstanding him. To the best of my current knowledge, he is claiming that this should be a state-by-state issue and not banned by the federal government.

However, he claims the Tenth Amendment in his argument. The Tenth Amendment has only two limitations on said powers: powers reserved to the federal government under the Constitution, and powers prohibited by the Constitution to the states. The Fourteenth Amendment, however, specifically prohibits states denying equal protection. Therefore, this links back to the First Amendment's guarantee of free speech, the states must protect that as well.

He has also failed to properly address how flag burning, expressive conduct and thus an act of speech, falls outside the umbrella of protected speech with regard to the Supreme Court precedents I have cited. Therefore, I ask voters to consider that I have made the more complete arguments. Thank you.
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Debate Round No. 4
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Debate Round No. 5
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