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LoyaltyAn Essay on the Morality of Relationships$
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George P. Fletcher

Print publication date: 1995

Print ISBN-13: 9780195098327

Published to Oxford Scholarship Online: October 2011

DOI: 10.1093/acprof:oso/9780195098327.001.0001

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Rights, Duties, and the Flag

Rights, Duties, and the Flag

Chapter:
(p.125) Chapter 7 Rights, Duties, and the Flag
Source:
Loyalty
Author(s):

George P. Fletcher

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195098327.003.0007

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

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