Mr. Dan Holden burned the American flag, he said, in order to prompt discussion. The First Amendment protected his action. Some of Mr. Holden’s supporters point to the Supreme Court’s holding in Texas v. Johnson (1989) which upheld flag burning as a form of protected expression. The school, however, justified his reassignment by saying that Mr. Holden violated fire-safety rules.

This Bill of Rights in the News eLesson asks your students to explore the First Amendment and its protections. Does the First Amendment protect the right to desecrate the American flag?

Resources

"Kentucky Teacher Reassigned After Burning Flags During Civics Lesson" Fox News.com. 8/22.
http://www.foxnews.com/story/0,2933,209750,00.html

Questions

1. What did Mr. Dan Holden do in two seventh grade Civics classes that attracted the attention of the Jefferson County Public Schools and parents?

Mr. Holden burned an American flag as part of a classroom lesson and invited his class to ask their parents what they thought about the lesson.

2. Why did Mr. Holden do this?

He assigned an opinion paper based on the flag-burning activity and hoped that the action would provoke thought and discussion about the topic of freedom of expression.

3. What action did the Jefferson County School Board take after parental complaints?

They reassigned him to non-instructional duties pending an investigation by both the fire department and the Jefferson County school board.

4. Do you think Jefferson County Public Schools violated Dan Holden's Constitutional rights when they reassigned him based on this lesson?

Yes, the First Amendment protects Mr. Holden's freedom of speech. Flag burning as protected speech has been upheld by the United States Supreme Court. The First Amendment protects speech, even though we may not agree with the expression.

No, the district reassigned him based on fire safety concerns, not on the content of the lesson. Violation of fire codes and the possible endangerment of the students is not protected. If this is not an act of civil disobedience (political speech), the teacher should be willing to accept the consequences of his actions for violating the local statutes.

5. Does the Constitution protect your right to burn the American flag? Explain your answer.

Yes, the First Amendment protects freedom of speech. Further, according to the decision in Texas v. Johnson (1989), burning an American flag - and in particular as as political protest - is a form of expressive conduct and symbolic speech protected by the First Amendment. Although some state statutes still criminalize burning the American flag in a public place - including Kentucky - the Federal precedent trumps state law in this case.

No. The First Amendment explicitly protects speech and Mr. Holden's burning of the flag was an action, not speech.

Extensions

1. The Senate rejected a proposed Amendment to the Constitution in June that would have outlawed desecration of the American Flag. Have students read the following article and discuss their opinion about flag desecration.

• "Senate Rejects Flag Desecration Amendment" The Washington Post. June 28, 2006.
  http://www.washingtonpost.com/wp-dyn/content/article/2006/06/27/AR2006062701056.html

2. Have students research the following cases dealing with the First Amendment and symbolic speech.

• Texas v. Johnson (1989)
  http://www.citizenbee.org/user/StudentGuide.aspx?id=784
• Tinker v. Des Moines (1964)
  http://www.citizenbee.org/user/StudentGuide.aspx?id=709
• Cohen v. California (1971)
  http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Cohen_v_CA