During such patriotic times, many Americans wonder what ever happened to the laws protecting the American flag. How is it OK for protesters to wear, burn, trample on, or otherwise destroy this esteemed symbol of national unity?
For many, it’s not OK.
But on this Flag Day, let us reflect not on the intentions of those who commit such an act, but rather on the many tribulations this treasured piece of cloth has endured over the past century so that our nation could finally conclude—though hotly contested—that defacing a symbol does not damage what it symbolizes. Just as destroying a wedding ring would not (necessarily) conclude a marriage.
Desecration of the flag has been a point of contention for lawmakers and citizens alike over the past century. The American people have demonstrated time and time again that this is perhaps the only form of expression that will not be tolerated. Congress has thrice passed laws to protect the flag from “contempt” and “desecration,” but each time the constitutionality of these laws is challenged at the U.S. Supreme Court, the convictions are overturned—almost always by a narrow margin.
In his dissent to a 1989 ruling in favor of a man who burned the American flag in protest, Justice John Paul Stevens wrote, “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln; schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for—and our history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.”
That sentiment—while representative of many an American patriot—does not, according to the majority of the high court, adequately take into account the freedom of expression that the First Amendment of the Constitution was written to protect.
“Free expression and the right to dissent are among the core principles which the American flag represents,” claims the ACLU on their website. “The First Amendment must be protected most when it comes to unpopular speech. Failure to do so fails the very notion of freedom of expression. Our democracy is strong because we tolerate all peaceful forms of expression, no matter how uncomfortable they make us feel, or how much we disagree. If we take away the right to dissent — no matter how unpopular — what freedom will be sacrificed next?”
The first decision by the U.S. Supreme Court on flag “desecration” was made in 1907 after Nicholas Halter was convicted of selling his beer with the U.S. flag printed on the bottle. In the case of Halter v. Nebraska, the issue was not over the right to burn or deface the flag, but rather the right to sell merchandise upon which the U.S. flag has been printed for purposes of advertisement. His conviction was upheld, and that aspect of flag protection remains today.
In 1969, veteran and Bronze Star recipient Sydney Street set fire to an American flag in New York after learning of the shooting of civil rights leader James Meredith in Mississippi. He was charged and convicted under a New York statute that prohibited the “public defamation or the casting of contempt upon [any American flag] either by words or act.”
When his conviction was upheld by the New York Court of Appeals, Street appealed to the U.S. Supreme Court where his conviction was overturned. Ironically, the high court didn’t even need to rule on whether his burning of the flag was a protected expression because protection of free speech was enough to deem the law unconstitutional.
In 1989, Gregory Lee (Joey) Johnson was arrested and convicted under a Texas law against intentionally or knowingly desecrating a state or national flag when he burned the American flag in protest at a Republican convention. Johnson was fined $2,000 and was sentenced to one year in jail.
The high court heard his appeal and overturned the verdict 5-4 based on the fact that Texas was violating Johnson’s constitutional rights to free expression by passing a law it claimed necessary to “protect from breaches of the peace due to the offense that burning a flag would cause.”
The court ruled that “Precedents do not countenance such a presumption. On the contrary, they recognize that a principal ‘function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or ... even stirs people to anger.’”
Justice William J. Brennan wrote for the majority, “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
But that didn’t stop Congress from passing yet another law to protect the flag just months after the Texas v. Johnson decision. The Flag Protection Act of 1989 (Title 18, Chapter 33, Section 700) legislatively challenged the Court’s ruling and once again prohibited the desecration of American flags.
Thousands of Americans turned to the streets after the law’s creation to burn flags in protest. Two of the actors arrested, Shawn Eichman and Mark Haggerty, challenged their convictions and once again gained 5-4 favor in the high court, effectively invalidating the Flag Protection Act.
Congress has since attempted seven more times to pass a constitutional amendment making an exception to the First Amendment in order to allow the government to ban flag desecration, but these attempts have failed each and every time—sometimes by as little as one vote.
It is understandably contradictory to many that today one cannot sell a bottle of beer depicting the American flag but it is perfectly legal to burn, soil, and trample on the national standard without fear of arrest. It is clear, however, by the discordance within the U.S. Supreme Court and by the repeated attempts at passing new laws that this fight is far from over.
Is it possible that many Americans see the Stars and Stripes as more than just a symbol? Perhaps these citizens see the national ensign as a physical representation of the country's unity and peace. Perhaps they react so strongly to these acts because the flag's desecration is not seen to them as a "peaceful" form of dissent at all, but rather a direct and violent attack on freedom and liberty as they understand it.
It was 234 years ago today when the American flag was first adopted, and only within the last half-century has anyone claimed constitutional protection from legal prosecution of flag desecration. The American people are clearly against the act, yet it remains legal based on the freedoms and liberties afforded by the U.S. Constitution.
Perhaps this quandary should be recognized for what it is: a perfect example of the challenges inherant in maintaining a democracy within the republic for which the American flag stands.
Five Fast Facts about Flag Day - USO.org
Joseph Andrew Lee is the USO's staff writer.