FLAG DESECRATION (Update)

The word "desecration" has religious overtones. It means defiling the sacred. Flag burning is the secular equivalent of the offense of blasphemy, a verbal crime signifying an attack, by ridicule or rejection, against God, the Bible, Jesus Christ, Christianity, or religion itself. Flag burning is comparable to a verbal attack on the United States. Burning the nation's symbol signifies contempt and hatred by the flag burner of the things he or she believes the flag stands for, such as colonialism, imperialism, capitalism, exploitation, racism, or militarism. To the overwhelming majority of Americans, however, the flag embodies in a mystical and emotional way the loyalty and love they feel for the United States. With few exceptions we venerate the flag because it symbolizes both our unity and diversity; our commitment to freedom, equality, and justice; and perhaps above all, our constitutional system and its protection of individual rights.

Like blasphemy, therefore, flag burning tests the outermost limits of tolerance even in a free society. Burning the flag is a most offensive outrage that stretches to the breaking point the capacity of a nation to indulge dissidents. But that same form of desecration is not only an act of vandalism; it is symbolic expression that claims the protection of the free speech clause of the first amendment. Therein lies the problem and the paradox: should the flag represent a nation whose people have a right to burn its revered symbol?

Imprisoning flag burners would not mean that book burning and thought control are next. We know how to distinguish vandalism from radical advocacy; we would not regard urinating on the Jefferson Memorial or spray painting graffiti on the Washington Monument as a form of constitutionally protected free speech. Special reasons exist for protecting the flag from the splenetic conduct of extremists. A society should be entitled to safeguard its most fundamental values, but dissenters have a right to express verbal opposition to everything we hold dear. Yet, nothing is solved by saying that it is better to live in a country where people are free to burn the flag if they wish, rather than in a country where they want to burn it but cannot. We know the difference between suppressing a particularly offensive mode of conduct and a particularly offensive message. The problem is, however, that the particular mode of conduct may be the vehicle for communicating that offensive message. To suppress the message by suppressing the conduct involves governmental abridgment of a First Amendment freedom. So the Supreme Court held in Texas v. Johnson in 1989.

In 1984 in Dallas, Gregory Johnson, a member of the Revolutionary Communist Youth Brigade, a Maoist society, publicly burned a stolen American flag to protest the renomination of ronald reagan as the Republican candidate. While the flag burned, the protesters, including Maoists, chanted, "America, the red, white, and blue, we spit on you." That the flag burning communicated an unmistakable political message was contested by no one. The police arrested Johnson not for his message but for his manner of delivering it; he had violated a Texas statute that prohibited the desecration of a venerated object by acts that seriously offended onlookers.

State appellate courts reversed Johnson's conviction on ground that his conduct constituted constitutionally protected symbolic speech. Given its context—the Republican convention; Reagan's foreign policy; the protestors' demonstrations, marches, speeches, and slogans—Johnson's burning the flag was clearly speech of the sort contemplated by the First Amendment. The Texas courts also rejected the state's contention that the conviction could be justified as a means of preventing breach of the public peace. In fact, the state admitted that no breach of the peace occurred as a result of the flag desecration. The Supreme Court, 5–4, affirmed the judgment of the Texas Court of Criminal Appeals.

Justice william j. brennan, spokesman for the majority, showed his political savvy by emphasizing that the courts of the Lone Star State, where red-blooded John Wayne patriotism flourishes, recognized "that the right to differ is the centerpiece of our First Amendment freedoms." Government cannot mandate a feeling of unity or "carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol." Brennan added that although the First Amendment literally forbids the abridgment of only "speech," the Court had labeled as speech a variety of conduct that communicated opinions, including the wearing of black arm bands to protest war, a sit-in by blacks to protest racial segregation, picketing, and the display of a red flag. Indeed the state conceded that Johnson's conduct was politically expressive. The question was whether that expression could be constitutionally proscribed, like the use of fighting words calculated to provoke a breach of peace. Apart from the fact that no breach occurred here, Brennan reminded, a prime function of free speech is to invite dispute. The "fighting words" doctrine had no relevance in this case because the message communicated by flag burning did not personally insult anyone in particular.

Whether the state could justify the conviction as a means of preserving the flag as a symbol of nationhood and national unity depended on the communicative impact of the mode of expression. Brennan insisted that the restriction on flag desecration was "content-based." Johnson's political expression, he declared, was restricted because of the content of the message that he conveyed. This point is important and unpersuasive. As Chief Justice william h. rehnquist for the dissenters said, burning the flag was no essential part of the exposition of ideas, for Johnson was free to make any verbal denunciation of the flag that he wished. He led a march through the streets of Dallas, conducted a rally on the front steps of the city hall, shouted his slogans, and was not arrested for any of this. Only when he burned the flag was he arrested. Texas did not punish him because it or his hearers opposed his message, only because he conveyed it by burning the flag.

Brennan replied that by punishing flag burning the state prohibited expressive conduct. "If there is a bedrock principle underlying the First Amendment," he wrote, "it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." By making an exception for the flag, Texas sought to immunize the ideas for which it stands. Whatever it stands for should not be insulated against protest. In the context of this case, the act of flag burning constituted a means of political protest. Compulsion is not a constitutionally accepted method of achieving national unity.

Brennan believed that the flag's deservedly cherished place as a symbol would be "strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength." This was the Court's strongest point.

Texas v. Johnson provided Court watchers with the pleasure of seeing judicial objectivity at work, for the Court did not divide in a predictable way. The majority included Justices antonin scalia and anthony m. kennedy, Reagan-appointed conservatives, whereas the dissenters included Justice john paul stevens, a liberal moderate. Stevens wrote his own dissent. He believed, oddly, that public desecration of the flag "will tarnish its value." He also thought that the Texas statute that the Court struck down did not compel any conduct or profession of respect for any idea or symbol. The case had nothing to do with disagreeable ideas, he said; it involved offensive conduct that diminishes the value of the national symbol. Texas prosecuted Johnson because of the method he used to express dissatisfaction with national policies. Prosecuting him no more violated the First Amendment than prosecuting someone for spray painting a message of protest on the Lincoln Memorial.

Rehnquist's dissent was suffused with emotional theatrics about the flag and patriotism. His point was that the flag was special, as two hundred years of history showed. Even if flag burning is expressive conduct, he reasoned, it is not an absolute. But he thought it not to be expressive conduct. Flag burning was no essential part of any exposition of ideas, he claimed, but rather was "the equivalent of an inarticulate grunt" meant to antagonize others. By the same reasoning, however, one might say that flag flying is also a grunt of patriotism. That does not alter the point that flag burning is malicious conduct—vandalism rather than speech.

Zealous politicians, eager to capitalize on their love for the flag and opposition to those who burned it, sought to gain political advantage from the Court's opinion. President george bush, a war hero, had helped spur a paroxysm of patriotism in 1988 by assaulting his opponent for having vetoed a bill that would have compelled teachers to lead their students in a Pledge of Allegiance every day. Bush, having made a photo opportunity of visiting a flag factory in 1988, made another after the decision in Texas v. Johnson, by holding a ceremony in the White House rose garden. Accepting a replica of the Iwo Jima Memorial, depicting the marines hoisting the flag on a bloody wartime site, Bush condemned flag burning as a danger to "the fabric of our country" and demanded a constitutional amendment outlawing desecration of the flag.

Cynical observers shouted "cheap politics" and criticized the President and his supporters for trying to cover up problems concerning the savings and loan scandals, the deterioration of the nation's schools, the ballooning national debt, the urban underclass, and the army of homeless beggars in American cities. Bush's opponents declared that he sought to desecrate the Constitution by indulging in escapist politics and seeking the first revision of the bill of rights in two centuries. Many conservatives in Congress agreed that tampering with the Bill of Rights was not the way to treat the problem of flag burning. Democrats, who felt obligated to "do something" at the risk of being branded unpatriotic, offered the Flag Protection Act of 1989, and so headed off the amendment movement. The new act of Congress provided that whoever knowingly mutilates, defaces, physically defiles, or burns the flag shall be fined or imprisoned for a year, or both.

Members of the "lunatic left" promptly defied the act of Congress by burning the flag on the Capitol steps for the benefit of the TV cameras. Shawn Eichman and company got the publicity they wanted and were arrested. They quickly filed motions to dismiss, on grounds that the act of Congress was unconstitutional; that is, the flag they burned symbolized their freedom to burn it. The government asked the Supreme Court to reconsider its holding in Texas v. Johnson by holding that flag burning is a mode of expression, like fighting words, that does not enjoy complete protection of the First Amendment.

The Court, by the same 5–4 split, refused to alter its opinion. Brennan, again the majority spokesman, acknowledged that the government may create national symbols and encourage their respectful treatment, but concluded that it went too far with the Flag Protection Act "by criminally proscribing expressive conduct because of its likely communicative impact." Desecrating the flag was deeply offensive to many people, like virulent racial and religious epithets, vulgar repudiations of conscription, and scurrilous caricatures, all of which came within the First Amendment's protection, notwithstanding their offensiveness.

The government sought to distinguish the Flag Protection Act from the state statute involved in Johnson, on the theory that the act of Congress did not target expressive conduct on the basis of the content of its message. The government merely claimed its authority to protect the physical integrity of the flag as the symbol of our nation and its ideals. Brennan replied that destruction of the flag could in no way affect those ideals or the symbol itself. The invalidity of the statute derived from the fact that its criminal penalties applied to those whose treatment of the flag communicated a message. Thus, United States v. Eichman, resulting in the voiding of the act of Congress, was a replay of Johnson.

Stevens, for the dissenters, recapitulated his previous contentions. He believed that the majority opinion concluded at the point where analysis of the issue ought to begin. No one, he declared, disagreed with the proposition that the government cannot constitutionally punish offensive ideas. But, he argued, certain methods of expression, such as flag burning, might be proscribed if the purpose of the proscription did not relate to the suppression of ideas individuals sought to express, if that proscription did not interfere with the individual's freedom to express those ideas by other means, and if on balance the government's interest in the proscription outweighed the individual's choice of the means of expressing themselves. Stevens expatiated on the flag as a symbol and insisted that the government should protect its symbolic value without regard to the specific content of the flag burner's speech. Moreover, Eichman and the other dissidents were completely free to express their ideas by means other than flag burning. Stevens apparently missed the point that Eich-man had a right to choose his own means of communicating his political protest. What disturbed Stevens most was the belief that flag burners actually have damaged the symbolic value of the flag. And he added the following in a veiled allusion to the shenanigans of would-be amenders of the Constitution: "Moreover, the integrity of the symbol has been compromised by those leaders who seem to advocate compulsory worship of the flag even by individuals whom it offends, or who seem to manipulate the symbol of national purpose into a pretext for partisan disputes about meaner ends."

Every nation in the world has a flag, and many of them, including some democracies, have laws against desecrating their flag. No other nation has our Bill of Rights. The year 1991 marked the 200th anniversary of its ratification. It requires no limiting amendment. The American people understand that they are not threatened by flag burners, and the American people prefer the First Amendment undiluted. They understand that imprisoning a few extremists is not what patriotism is about. Forced patriotism is not American. Flag burning is all wrong, but a lot of wrongheaded speech is protected by the Constitution. When the nation celebrated the bicentennial of the Bill of Rights, it celebrated a wonderfully terse, eloquent, and effective summation of individual freedoms. Time has not shown a need to add "except for flag burners." That exception, as the Court majority realized, might show that the nation is so lacking in faith in itself that it permits the Johnsons and Eichmans to diminish the flag's meaning. They are best treated, as Brennan urged, by saluting the flag that they burn or by ignoring them contemptuously.

Leonard W. Levy
(1992)