ABSTRACT
Since 1969, the Supreme Court has three times reversed the convictions of persons who "desecrated" the American flag as a symbolic means of political protest. But each time the Court avoided a broad holding that flag desecration for symbolic purposes is constitutionally protected wider the first amendment. In this Comment, Professor Ely describes a doctrinal framework for first amendment analysis originally developed by the Supreme Court of the late Warren era. This framework, he argues, not only provides a stable basis for judicial resolution of free expression questions generally, but also suggests both the immediate difficulty and the ultimate resolution of the flag desecration problem. State laws typically extend American flags two separate sorts of protection. One provision, and it is this that is generally referred to as the "desecration" provision. The other sort of provision typically employed, sometimes called an "improper use" provision, outlaws affixing to the flag.
