Has flag burning always been free speech?

I had an interesting phone conversation with a member of my focus group. She and I were trying to understand president-elect Donald Trump's strategy of tweeting. We looked at his assertion that burning the American Flag should be illegal and there should be punishment for so doing. The question was, could flag burning and desecration become a crime in the future?

In Texas v. Johnson (1989) the U.S. Supreme Court invalidated prohibitions on desecrating the American flag. Justice William Brennan wrote for a 5-4 majority decision that found flag burning was protected speech under the First Amendment. The decision invalidated laws in 48 states that had made flag desecration illegal. Before this decision and for over 200 years flag burning was not protected speech.

In response to the court ruling Congress passed the so-called Flag Protection Act of 1989, making it a federal crime to desecrate the flag. The next year, in United States v. Eichman, the Supreme Court struck down that law. Congress has considered the Flag Desecration Amendment several times, each bill passing in the House of Representatives but defeated in the Senate.

Many Americans and the media consider flag burning 'settled law,” just like abortion. But in a dynamic system such as the U.S., nothing is 'settled.” Take the 'settled” definition of marriage, which since independence had been that marriage is between a man and a woman. In 2015, the Supreme court overturned settled law and ruled that the right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

I have had many interesting discussions on this topic over the last week - with some of my focus group colleagues, neighbors in Nevada, with a local feed store owner, at the hardware store and in the American Government class that I teach.

In each, people seemed divided on the issue. Some felt flag burning should be and is a form of Constitutionally protected, symbolic speech. Others felt it was not acceptable and should be prohibited.

Those favoring protecting flag burning seemed to feel that a huge majority of Americans supported that position. In fact, the U.S. is divided on the issue.

In a 1990 survey by the Roper Center at Cornell University, 69 percent of respondents said there should be a Constitutional amendment banning flag burning. A significant 58 percent disagreed with the Supreme Court ruling mentioned above, which declared flag burning was protected under the First Amendment. In 2006, when the Senate rejected a proposal for amending the U.S. Constitution to allow Congress to ban burning or desecrating the American flag, USA Today and Gallup polled Americans and found that 56 percent supported such an amendment.

It may be unlikely, but it is far from impossible for Congress and even the Court to reverse itself on the flag burning issue. Freedom of speech issues may undergo reassessment when patriotism and nationalism rises. The Republican Party has been politically very successful since 2008. Roughly 80 percent of the American population is now living in a state that is either all or partially controlled by Republicans. It has been observed that Democrats are practically extinct in the South.

This may bring about a re-examination of the definition of freedom of speech, including flag burning, if the balance in the Supreme Court changes and Republicans want to reexamine the issue. There is no 'settled” law in the United States. Even Roe v. Wade could be reversed. Everything is dynamic.

' Steffen Schmidt is professor of political science at Iowa State University. Comments: steffenschmidt2005@gmail.com