Flag Desecration in Courts,
Congress and Country*
The issue of flag desecration will not go away. For two decades the Supreme Court did its best to avoid deciding whether the First Amendment protected the burning of an American flag as a form of political protest, but in 1989 it could do so no longer. And when it decided, by a 5-4 majority in Texas v. Johnson, that a flag burner was constitutionally protected, powerful forces were unleashed to reverse the ruling. The issue is still with us.
Although a flag act was passed in 1818, which specified that its stripes should be horizontal, "[e]arly Congresses discussed the national flag infrequently and with marked indifference." The Civil War was the turning point, with veneration for the stars and stripes – in the North only, of course – becoming one feature of a new sort of patriotism. Toward the end of the 19th century, partly as a reaction to the increasing use of the flag as a commercial symbol, a flag protection movement grew. This resulted in statutes passed by every state that typically banned putting marks on a flag, or "publicly" mutilating, defacing, or casting contempt on the flag "by words or act."
[Following the lead of the Supreme Court in a 1907 decision], the courts upheld prosecutions for desecrating the flag in many states, with most of the cases involving political protests rather than commercial uses and the bulk of them clustered during the two World Wars, when patriotism was heightened.
But in 1943, in one of the turning points in Supreme Court history, the Court ruled that, under the First Amendment, school children who were Jehovah's Witnesses could not be penalized if they refused to salute the American flag because of religious or conscientious scruples. The Flag Salute case presents this question: If someone cannot be punished for showing disrespect for the flag by refusing to do something, can a person be punished for showing disrespect through doing something, specifically the burning or mutilating of the flag? For about 25 years the issue lay dormant, but in April 1967 a flag burning in New York's Central Park during an anti-Vietnam War demonstration attracted wide attention. Within three weeks, more than a hundred bills were introduced in Congress to outlaw flag burning, and the first federal law was overwhelmingly passed in 1968, making it a crime "knowingly" to cast "contempt" upon "any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it." …
The 1968 law never reached the Supreme Court. But another incendiary issue was decided that year – whether a young man named David O'Brien could be legally convicted for burning his draft card in protest against the war. By an 8-1 vote the Supreme Court said yes, in a three step analysis that bears on flag burning. First, the Court refused to look at the motive of Congress in passing the law that criminalized draft card burning. Second, the Court said, expressive action or symbolic speech – like draft card or flag burning, or union picketing – would be treated differently from "pure" speech. In symbolic speech cases the government need not demonstrate a "compelling interest" to punish the speech – the usual First Amendment test; it need only show that it was advancing a "substantial" policy reason unrelated to the suppression of free expression. Third, under this test, the draft card law was valid because the government had a substantial interest in making sure that all draft registrants had their cards with them at all times.
this reasoning to statutes punishing flag desecration, the central
question is whether the government has a substantial interest unrelated
to suppression of free expression to punish those who desecrate the
II. Texas v. Johnson
The case began at the 1984 Dallas convention of the Republican Party when members of a group called the Revolutionary Communist Youth Brigade protested the planned renomination of Ronald Reagan. Justice Brennan's opinion for the Court described what happened when the demonstration ended in front of Dallas City Hall:
Gregory Lee Johnson unfurled [an] American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted: "America, the red, white, and blue, we spit on you." After the demonstrators dispersed, a witness to the flag burning collected the flag's remains and buried them in his backyard. No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning.
Gregory Johnson was charged under a Texas law that prohibited intentionally desecrating a public monument, a place of worship or burial, or a state or national flag. The law defined "desecration" to mean a physical mistreatment of the flag "in a way that the actor knows will seriously offend one or more persons." A jury found Johnson guilty, and the case eventually went to the highest Texas criminal court, the Court of Criminal Appeals, where to general astonishment the conviction was reversed. The opinion, written by a highly conservative judge, concluded that Johnson engaged in symbolic speech, and that no asserted state interest supported the conviction. The statute therefore was "too broad for First Amendment purposes."
The case then moved to the U.S. Supreme Court, where it was argued and decided in the spring of 1989. Almost everyone thought the Texas high court's opinion would be reversed because the Supreme Court rarely takes such a case merely to affirm. Once again, the experts were confounded. Two generally conservative justices, Scalia and Kennedy, joined the three liberal justices, Brennan, Marshall, and Blackmun, to hold that the First Amendment protected flag-burning.
Justice Brennan's opinion quickly concluded that flag-burning was expressive conduct under the First Amendment and that there was no issue of public disorder in the case. He then turned to whether the Texas law would be governed by the usual strict First Amendment standard or the more lenient rule that the O'Brien draft card burning case specified for certain cases of mixed speech and action. Brennan said that the O'Brien test did not apply because Texas's interest in preventing breaches of the peace was not implicated on the record of the case and the interest in preserving the flag as a symbol of nationhood and national unity was "related to the suppression of expression." Unlike the O'Brien draft card case, where the government had a governmental interest to make sure that draft registrants possessed their cards, Texas's purpose was simply to censor expression that offended. In a critical passage, Brennan said that to punish Johnson in these circumstances would violate "the bedrock principle underlying the First Amendment" that "the Government may not prohibit expression of an idea simply because society finds the idea itself offensive or disagreeable."
There were dissenting opinions by Chief Justice Rehnquist and Justice Stevens, written with unusual passion. The reason for this was not the theoretical nature of the First Amendment issue, but rather that the American flag was at the heart of the controversy. To many, the flag reflects all that is good about the country or, as Justice Stevens wrote, the flag represents "nationhood and national unity" and the "ideas that characterize the society . . . as well as the special history that has animated the growth and power of those ideas." The intentional defacement of that symbol burns harshly into the minds and hearts of those who share this view. Justice Oliver Wendell Holmes was fond of saying that "we live by symbols," and if this is so there is hardly a more emotive symbol than the flag. …
Chief Justice Rehnquist and Justice Stevens sought to avoid the implications of the fact that a symbol conveys an idea. Rehnquist said that the flag is not "simply another 'idea' or 'point of view' competing in the marketplace of ideas" because "millions and millions of Americans regard it with an almost mystical reverence." He recalled at length how at Iwo Jima, in the Second World War, U.S. Marines fought thousands of enemies hand to hand and finally reached the top of Mount Suribachi, where they raised the flag. That ascent, he pointed out, cost nearly 6,000 American lives.1…
The dissenters, following Texas, maintained that the flag as a symbol of nationhood and national unity should survive because this interest is "compelling" and the law was aptly tailored to further it. …
…[F]lag burning should be protected expression because it quintessentially represents political dissent, as Professor Steven Shiffrin has pointed out:
The flag-burning prohibition is a naked attempt to smother dissent. If we must have a "central meaning" of the First Amendment, we should recognize that the dissenters – those who attack existing customs, habits, traditions and authorities – stand at the center of the First Amendment and not at its periphery. Gregory Johnson was attacking a symbol which the vast majority of Americans regard with reverence. But that is exactly why he deserved First Amendment protection.2
III. The Political Struggle after Johnson
But what may be true as a matter of constitutional principle is often not accepted by the public. The Johnson decision was met with virtual hysteria – by the people, in the press, and in the Congress. Immediately there was a nation-wide movement to "protect the flag" by overturning the decision. …President George [Herbert Walker] Bush and many members of Congress of both parties condemned the ruling, and scores of proposals for a constitutional amendment to overturn it were introduced in Congress. …
Almost everyone in Congress agreed that something had to be done, with the vast majority urging an immediate constitutional amendment to permit punishment of flag burners. A few maintained that a federal statute might be drafted that would pass muster with the Supreme Court – after all, only one more vote was needed to reverse the Johnson result. Despite the urgent mood, the issue might have faded away if President Bush had not made a major speech in favor of a constitutional amendment. Bush's reaction to the decision in Johnson in 1989 was the culmination of an electoral strategy he adopted during his 1988 presidential campaign against Michael Dukakis. Bush had visited flag makers in Ohio and New Jersey and surrounded himself with flags at every opportunity. …
The critical question in the summer of 1989 was whether there were enough votes in both Houses of Congress to pass a constitutional amendment by the necessary two-thirds margin, or whether Congress would have to settle for a statute that would be immediately tested in the courts. The proposed amendment was simply worded: "The Congress and the States shall have power to prohibit the physical desecration of the flag of the United States." …[T]he amendment was spare; it merely prohibited "desecration" without defining it, as Texas and most other states had done in its laws. Presumably, Congress and each state could "enforce" the amendment according to its own view of what desecration meant[.] …
[In contrast to the proposed constitutional amendment], [t]he proposed statute … was more detailed. It provided for punishment for anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States," except for "any conduct consisting of the disposal of a flag that has become worn or soiled." It defined "flag of the United States" as "any flag . . . or any part thereof, made of any substance, of any size, in a form that is commonly displayed."3
In the summer of 1989, … [t]here were three broad positions in Congress: those who favored doing nothing – that is, allowing flag desecration to go unpunished; those who favored a statute; and those who favored a constitutional amendment. …
The third group, those favoring an amendment to the Constitution, … said that nothing short of an amendment would do justice to the almost holy symbol of the American flag.
The Senate passed the statute and then rejected the constitutional amendment. It was rejected because the statute gave cover to senators who privately agreed with the Supreme Court, and because it took the wind out of the sails of pro-amendment senators since the Senate had now done something to criminalize flag burning.
In the end, the constitutional amendment was defeated in the Senate by a surprisingly large margin, receiving only 51 votes of the 67 required if everyone voted. The statute itself – the new Flag Protection Act or FPA –passed easily. The House vote was 380-38 and in the Senate it was 91-9, roughly a ten to one margin in each chamber.
IV. United States v. Eichman 
President Bush favored a constitutional amendment, and therefore he refused to sign the new statute. But he didn't veto it either, which meant that the bill became law without his signature on midnight, October 27, 1989. Within hours flags were burned across the country. Eventually there were arrests and prosecutions, in which lower courts in Seattle and Washington, D.C. ruled that the Supreme Court decision in the Johnson case governed and the law was thus unconstitutional.
The statute soon was on the way to the Supreme Court. …[T]he Court, again in an opinion by Justice Brennan, followed the Johnson precedent by an identical margin of 5-4. …
V. The Constitutional Amendment
A. The Continuing Congressional Struggle
We have seen that in 1989 adroit management by the Democratic leadership in the Senate derailed the flag amendment by supporting the FPA as a substitute. Four times since then an amendment has been pressed in the Congress.4 While it has been defeated each time, sometimes narrowly, the pressure from its supporters has not abated.5…
1995. After the Republicans captured both houses of Congress in the 1994 elections, veterans' groups and others who had seemed dispirited a few years before mounted a new campaign to reverse the Johnson and Eichman decisions. And this time they came close to victory. In June 1995, the House of Representatives voted 312-120 in favor, well more than the two-thirds needed, with House Democratic Leader Richard Gephardt and many other Democrats and Republicans switching their votes from 1990.
What accounted for the change? …[One] important factor – because it seemed to reflect the mood in the country – was the emphasis that proponents placed on the general sense that there was something approaching a crisis in the body politic, and that the amendment was an effort by mainstream Americans to reassert community values and protest against the vulgarization of society.
But the amendment lost in the Senate, … when supporters fell short with 63 out of the necessary 67 votes, increasing by five the number of votes they had gotten in 1990.6 …
B. The Merits
… American history is unambiguous. Since the adoption of the Bill of Rights in 1791, as part of the original settlement between those favoring and those opposing the adoption of the Constitution itself, there have been only seventeen amendments. …
Six amendments address individual rights: the three Civil War Amendments designed to bring former slaves into full citizenship (Amends. XIII-XV), and those amendments granting women the suffrage (Amend. XIX), outlawing the poll tax, which had been wielded to deny the vote to African-Americans (Amend. XXIV), and extending the ballot to 18-year-olds (Amend. XXVI).
All these amendments expand individual liberty. If the flag desecration amendment becomes law, it will be the first that restricts liberty, surely not a high recommendation….
History is of course relevant to the way in which the flag desecration amendment is viewed, but as is often the case the history is disputed. The opponents of an amendment point to a famous "desecration" of the English flag by George Washington during the early days of the Revolutionary War. On taking command of the colonial army, Washington removed both the cross of St. George and the cross of St. Andrew from an English flag. He then sewed six white stripes onto the red field, thus creating the 13 red and white stripes that remain to this day.
An even earlier incident culminated in Endecott's Case, in which a defacer of the English flag, in apparent protest against King Charles I, was successfully prosecuted in 1634 in the Massachusetts Bay Colony. Senate proponents of a constitutional amendment pointed to this case as evidence that flag desecration has long been punishable. Senate opponents stressed that the Bay Colony offered no protection to free expression and asserted that "[i]t should be inconceivable that the actions of the British colonial government repressing American patriots should be the model" for a proposed constitutional amendment in the late 20th century. It is difficult to give Endecott's Case much weight in the current controversy.
… A far more important objection to the present amendment than anything gleaned from colonial history is the vagueness of its key terms, "flag" and "desecrate," neither of which is defined in the text ....
VI. Final Reflections
It may be true, as scholars have written, that Texas v. Johnson is an "easy case" and "obvious." But as events have proved since 1989, it would be an error to ignore the sources and implications of the persistent pressure to amend the Constitution to permit prosecution of flag burning and other forms of "desecration." This suggests that the issue may one day be resolved politically but not settled sociologically or psychologically.
This is so although flag desecration has no discernible impact on the economy, on other pressing domestic issues, on national security, or on international affairs. But the constitutional controversy over the flag shows, once again, that we do not live by bread alone. There have been other recent struggles whether to remove the Confederate battle flag from the South Carolina Statehouse and, in Northern Ireland, over "what flag flies atop government buildings." Cecilia O'Leary has persuasively observed that "[a]s long as there are structures of inequality, nationalism will remain conflicted over who speaks for the country, who has 'a right to the flag,' what memories and symbols deserve official recognition, and whether the nation-state will guarantee or limit the rights of citizenship."7 …
[T]he flag issue has had staying power, for two main reasons. The first is political. As Representative Jenkins stated in our dialogue at a committee hearing, polls regularly show that a majority of the people want to "protect” the flag, and it is therefore understandable that some politicians would continue to press the matter for whatever electoral benefit can be derived.
The second reason cuts deeper. To many, flag desecration has become a metaphor for late 20th century permissiveness, self-indulgence and even anarchy, and it therefore must be opposed and stamped out. Professor Stephen Presser in 1998 congressional testimony supporting a flag amendment referred to the constitutional goal of "secur[ing] a certain baseline of civilized behavior" and said that "the personal liberty element of our tradition has, in effect, spun out of constitutional control." …
These impulses are underscored in the proposed amendment by the word "desecration," which suggests a modern religious crusade rather than merely a conventional dispute over public policy. The despoilers of the flag, in this view, are not merely insulting one of the nation's great symbols, but indulging in blasphemy, leading to the charge from opponents that such religious imagery "veer[s] close to idolatry because the concept of 'desecration' applies only to religious objects and not to other things, no matter how justly admired." …
These attitudes, when added to the broad patriotic feeling about the flag, explain the zeal for an amendment. But this very zeal promotes a special danger to the rule of law. In the hands of some prosecutors, the elastic amendment, if ratified and implemented by a congressional statute, could be a license to proceed against the politically unpopular, the counter-culture and the despoilers of our body politic that Professor Presser, among others, deplores. …
Notes on Flag Desecration in Courts, Congress and Country
* Extracted from Norman Dorsen, “Flag Desecration in Courts, Congress and Country,” (2000) 17 T.M. Cooley L. Rev 417, with the permission of Norman Dorsen and the editors of Thomas M. Cooley Law Review. For the sake of space, most footnotes are omitted. An ellipsis indicates where material has been cut.
** Stokes Professor of Law, New York University School of Law. Former President, American Civil Liberties Union, 1976-1991. Founding director of Hauser Global Law School Program, NYU, in 1994. Editorial director of the International Journal of Constitutional Law from its inception. First recipient of American Association of Law Schools (AALS) Award for Lifetime Contributions to the Law and to Legal Education (2007). [Professor Dorsen] is grateful for the valuable assistance of Jay Ward Brown, Stevenson Munro, and David J. Milton [on the original article].
1. See the extraordinary depiction of that struggle in James Bradley, Flags of Our Fathers (2000). [orig. footnote 26]
2. Id.. See Steven Shiffrin, “The First Amendment and the Meaning of America,” in Identities, Politics, and Rights 318 (Sarat & Kearns eds., 1995). In the same vein, Professor Frank Michelman, a former law clerk to Justice Brennan and a perceptive reader of his opinions, recently asserted that "the rhetorical hero of Justice Brennan's opinion for the Court in Johnson . . . is not the autonomous, rebellious protester, it is the political society that protects his act of protest for sake of the self-respect of its people and of the structural value of dissent." Frank J. Michelman, Brennan and Democracy 79 (1999). [orig. footnotes 35 & 36]
3. Flag Protection Act of 1989, 18 U.S.C.A. § 700 [orig. footnote 40]
4. [Ed.: that is, up to 2000.]
5. [Ed.: Professor Dorsen gives an account of the four Congressional battles, up to and including 1999-2000. Only one, that of 1995, is digested in this extract.]
6. [Ed.: One indication that the flag continues to play the role of a Janus-faced symbol of freedom in cultural and political discourse in the US is that, as recently as 2006, yet another vote took place in the US Senate on a proposed amendment to the US federal constitution that would have seen ‘flag desecration’ constitutionally prohibited. The amendment motion almost passed in the Senate, this time failing to reach the required 67 votes by a single vote (66-34). In the various Congressional episodes prior to 2006, the closest the Senate – as opposed to the House of Representatives – has come to endorsing a constitutional amendment was four votes shy of the required 67. As other Senators had done in the past, in 2006 it was Senator Hillary Clinton who played the role of sponsor of an alternative approach, a statutory regime criminalizing flag desecration. This tactic, as before, would seem to have been designed to take the wind out of the sails of the full-blown constitutional amendment approach, even as support for a statutory prohibition allowed the Senator (and others supporting the statute) to argue to the electorate that they were strong patriots. The statutory alternative was voted down in the Senate by 64-36, failing by 15 votes to reach the 51 votes needed for a statute to be adopted. See Anne E. Kornblut, “Senator Clinton and Liberals Split Over Flag Desecration,” N.Y. Times, June 28, 2006, at A16. For a chronology of the campaign for a flag-related constitutional amendment from the perspective of the Citizens' Flag Alliance, Inc. and the American Legion – which have, in their own words, “waged a battle to secure a flag-protection amendment since 1989 – see
http://www.legion.org/documents/cfa/pdf/campaigns.pdf. The next cycle of amendment attempts has begun with an amendment resolution having been introduced in the House of Representatives, and jointly sponsored by both Republicans and Democrats, on January 11, 2007.]
7. Cecilia Elizabeth O'Leary, To Die For: The Paradox of American Patriotism 9 (1999). [orig. footnote 83]
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