The flag burning controversy and the Sui Generis argument

Abstract

This article contends that the flag burning controversy in American politics during the past two decades is anchored in a discussion of symbolic speech, the article examines the degree of protection that symbolic speech provides to flag burning and the emergence of a sui generis position that would remove flag burning from traditional First Amendment safeguards. The article is divided into three sections. The first section examines the evolution of the construct of “symbolic speech.” The second section discusses the governmental speech thesis that the flag represents a sui generis exception from traditional First Amendment concerns. The third section analyzes the flaws with the government speech thesis. The conclusion explores why discussions about flag burning issues are treated differently by the public than by the courts.