By Robert Justin Goldstein, Contributing Writer
Updated June 28, 2006
Today, the American flag is a ubiquitous symbol of the United States. It is displayed widely in front of government buildings, private homes and commercial enterprises. It is used extensively as a design springboard for clothing, advertising and the widest possible variety of other products. However, after June 14, 1777, when the Continental Congress adopted it as the nation’s symbol, it attracted little interest or public display for more than 80 years. Only the outbreak of the Civil War transformed the flag into an object of public adoration (although only, of course, in the North).
The newfound Northern love for the flag continued after the Civil War, but the flag’s growing popularity was not accompanied by any sense that it should be regarded as a sacred object or relic. The most common form in which it became increasingly visible in American life during the post-Civil War period was as a decorative accompaniment in the commercialization of a wide range of products, as the modern advertising industry developed amidst the rapid postwar industrialization of the nation. Gradually, after 1890, union veterans and members of traditional patriotic groups (such as the Sons of the American Revolution) began to protest what they alleged was the commercial debasement of the flag. Such commercial use, they argued, would ultimately degrade the significance of both the flag and patriotism among the general public. After about 1900, the supposed threat to the flag shifted from commercial exploitation to the threat allegedly posed by its use as a means of expressing radical protest — by the likes of political radicals, trade union members, and immigrants (who were often indiscriminately lumped together).
Between 1897 and 1932, veterans and hereditary-patriotic groups lobbied for stringent laws to “protect” the flag against all such forms of alleged “desecration” (a term heretofore used to refer to harm against sacred religious objects). Such efforts ultimately resulted in the passage of flag-desecration laws in all 48 states, with a burst of 31 states acting between 1897 and 1905 alone. The laws generally outlawed: (1) attaching anything to or placing any marks on the flag; (2) using the flag in any manner for advertising purposes; and (3) physically or even verbally “harming” flags in any way, including “publicly” mutilating, trampling, defacing, defiling, “defying” or casting “contempt,” either “by word or act,” upon the flag. The term “flag” was generally defined to mean any object of any form, size or material that resembled the American flag.
The earliest state flag-desecration laws were quickly and, at first, successfully challenged in local and state courts as illegally restricting property rights by adversely affected commercial interests. However, in the 1907 case of Halter v. Nebraska, the U.S. Supreme Court upheld (8-1 with Justice Rufus Peckham dissenting) Nebraska’s law in sweeping terms, terms that made clear the futility of any further legal challenges for the foreseeable future. The case involved selling bottles of “Stars and Stripes” beer, which had pictures of flags on the labels. The majority, per Justice John Marshall Harlan, held that the state was entitled to restrict property rights for the valid and worthy purpose of fostering nationalism. In a ruling that did not address free-speech rights, the Court declared that “love both of the common country and of the State will diminish in proportion as respect for the flag is weakened.” The basic idea was that advertising usage of the flag tended to “degrade and cheapen it in the estimation of the people” and that the state was entitled to “exert its power to strengthen the bonds of the Union and therefore, to that end, may encourage patriotism and love of country among its people.”
The Supreme Court never considered another flag-desecration case until 1969. During the interim period the constitutionality of flag-desecration laws was essentially considered beyond review by the lower courts. The Court finally revisited the issue during the Vietnam War period, when flags were widely burned or otherwise used in unorthodox ways to express political dissent (resulting in scores of flag-desecration prosecutions).
In Street v. New York (1969), the Court relied heavily upon its rulings inStromberg v. California (1931) and (especially) West Virginia Board of Education v. Barnette (1943) to strike down flag-desecration provisions that outlawed verbal disrespect for the flag. This time the Court’s ruling was grounded in the First Amendment. The Court, by a 5-4 vote, with Justice John M. Harlan (grandson and namesake of earlier Supreme Court Justice John Marshall Harlan) writing for the majority, overturned Sidney Street’s flag-desecration conviction on the strained grounds that since he had been charged under a provision of New York’s law outlawing casting “contempt” upon the flag by “words or acts,” and evidence concerning his statements had been introduced at trial, he might have been convicted for his words alone. Any such conviction in the absence of an evident threat to the peace or incitement to violence was held to violate the First Amendment. The majority reasoned: Since “it is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,” even opinions about the flag “which are defiant or contemptuous.” The Court did not address the constitutionality of laws that banned physical flag desecration; it did so on the grounds that there was no need to decide the case “on a broader basis than the record before us imperatively requires.” After Street, the Court overturned convictions in two other Vietnam-era flag-desecration cases, Smith v. Goguen (1974) and Spence v. Washington (1974), which were both decided on narrow grounds. Again, the Court avoided directly addressing the validity of state interests in protecting the physical integrity of the flag in light of First Amendment questions.
Finally, in Texas v. Johnson (1989) the Court addressed the flag-burning issue head-on and held (5-4) that Texas’ “venerated objects” law had been unconstitutionally applied to Gregory Lee Johnson when he burned a flag in Dallas. In considering the two interests advanced by Texas as overriding Johnson’s First Amendment rights, the majority first held that, under previously established standards, “the state’s interest in maintaining order is not implicated” since “no disturbance to the peace actually occurred or threatened to occur because of Johnson’s burning of the flag.” Turning to Texas’ second asserted interest, “preserving the flag as a symbol of nationhood and national unity,” the majority held that since Johnson’s guilt depended “on the likely communicative aspect of his expressive conduct,” the Texas statute violated 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.” Citing its holding in Street that “a State may not criminally punish a person for uttering words critical of the flag,” the majority, represented by Justice William Brennan, declared flatly that Texas’ attempt to distinguish between the “written or the spoken words [at issue in Street] and nonverbal conduct … is of no moment where the nonverbal conduct is expressive, as is here, and where the regulation of that conduct is related to expression, as it is here.”
Furthermore, Brennan declared that the principle that “the Government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea” and therefore the state could not “criminally punish a person for burning a flag as a means of political protest” on the grounds that other means of expressing the same idea were available. The majority concluded that the “principles of freedom and inclusiveness that the flag best reflects” would be reaffirmed by its decision: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that his cherished emblem represents.”
The June 21, 1989, decision touched off an intense and massive uproar across the United States. Virtually every member of Congress endorsed resolutions condemning the ruling. In no time the congressional agenda was clear: namelyhow to circumvent the Court’s holding. Most Democrats maintained a statutory law would suffice to undercut the Court. The Democratic congressional leadership noted that Johnson struck down a Texas statute that forbade flag desecration likely to cause “serious offense” to observers. Thus, the logic went that the Court might uphold a “content neutral” law. By contrast, President George H.W. Bush and most Republicans maintained a constitutional amendment would be required to negate the Court’s decision.
Whether due to a perceived cooling of public sentiment, to increasing signs of growing “elite” opposition to a constitutional amendment, or to growing acceptance of the argument that trying a statute first was preferable to constitutional “tinkering,” by October 1989, the drive for a constitutional amendment, seemingly unstoppable in late June after President Bush endorsed it, was sputtering. On Oct. 19, the constitutional amendment was killed, at least for that year, when the Senate defeated it by a vote of 51 for and 48 against, with two-thirds of those voting required for approval. However, in the meantime both houses of Congress had passed the proposed statutory alternative, the Flag Protection Act (FPA) of 1989.
The FPA provided penalties of up to one year in jail and a $1,000 fine for anyone who “knowingly mutilates, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States” with “flag” defined as “any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.” Although the stated purpose of the FPA was to end flag burnings, its immediate impact was to spur perhaps the largest single wave of such incidents in American history. Flags were burned in about a dozen cities shortly after the law took effect in late October.
Acting under an extraordinary expedited review procedure mandated by the FPA, the Supreme Court struck the FPA down by 5-4 in U.S. v. Eichman (1990). The Eichman ruling, again with Justice Brennan writing for the majority, essentially bolstered Johnson, finding that the government’s interest in protecting the flag’s “status as a symbol of our Nation and certain national ideals” was related “to the suppression of free expression” and could not justify “infringement on First Amendment rights.” While conceding that the new law, unlike the Texas statute in Johnson, “contained no explicit content-based limitation on the scope of prohibition conduct,” the majority held the FPA still suffered from “the same fundamental flaw” as the Texas law, namely that it could not be “justified without reference to the content of the regulated speech.” Justice Brennan added, “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”
The Eichman decision sparked an immediate renewal of calls by President Bush and others for a constitutional amendment. However, the proposed amendment was defeated in both houses of Congress in 1990. Revived after Republican election victories in 1994 that gave them control of both houses of Congress of the first time in 40 years, the amendment has been repeatedly passed by the required two-thirds supermajority in the House, but thus far has failed to gain a two-thirds vote in the Senate, most recently in June 2006.