And what of the public’s reaction to such an act? “We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by—as one witness here did—according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”
Justice Anthony Kennedy wrote in concurrence: “It is poignant but fundamental that the flag protects those who hold it in contempt.”32
It is hard to imagine a purer form of symbolic expression than inverting the American flag as John Fleming did, covering it with messages, trampling it underfoot, or even setting it ablaze. No libel is committed, nobody is incited to violence, no threat is issued, no falsely induced panic is provoked. No one else’s property is damaged or destroyed if the flag belongs to you.
The worst accusation that can be leveled is hypocrisy: that you are using the freedom the flag represents to damage or destroy the very symbol of that freedom—a cherished symbol, to be sure, but merely an arrangement of shapes and colors. The rare protesters who actually burn flags, as opposed to just hanging them upside down, may be guilty of nothing more than committing paradox. A more fitting gesture for opponents of the Vietnam War was suggested in 1969 by Norman Thomas, the perennial Socialist candidate for president: “If they want an appropriate symbol they should be washing the flag, not burning it.”33
The “bedrock principle” so visible to the Court’s slender majority keeps getting covered by the debris of cheap patriotism. Within half an hour after John Fleming hung his inverted flag in his bookstore, half a dozen outraged citizens called the police chief, who paid Fleming a visit and told him he was breaking an old state law making it a crime to “mutilate, deface, defile, trample upon, burn, cut or tear any flag in public,” none of which he had done. Part of the statute had been ruled unconstitutional thirty years before, but Fleming didn’t want to be arrested, so he removed his flag and then called the American Civil Liberties Union, which threatened a suit and got the town to retreat. Fleming, who was nicknamed “Coyote,” became the target of a threat himself as someone dumped the bloody carcass of a coyote on his doorstep, after cutting off the ears to get the bounty.34
Under the Supreme Court’s current interpretation of the First Amendment, you may burn a flag but usually not a cross, and never a draft card. “Speech,” in the Court’s view, also means speech plus conduct, as in marches and sit-ins. But the Court has drawn lines between expression that is protected by the First Amendment and expression that is not. Unprotected speech may be suppressed if the government’s interest is “compelling, substantive, subordinating, paramount, cogent, or strong,” as Chief Justice Earl Warren wrote in a draft-card case, United States v. O’Brien.35
On March 31, 1966, less than a year after American ground troops were sent to Vietnam, four protesters, including David Paul O’Brien, went to the steps of the South Boston Courthouse and demonstrated their antiwar positions by burning the Selective Service registration certificates that all males eighteen and over were required to carry. After several onlookers began attacking the protesters, O’Brien was taken to safety inside the courthouse by FBI agents, who then arrested him. He was convicted, and he challenged the law as a violation of his right to free speech.
Federal law had imposed up to five years in prison for anyone “who forges, alters, or changes” a draft card, a reasonable prohibition that had nothing to do with political expression. Then, to quell the card’s use in protests, Congress in 1965 added two offenses: “knowingly destroys” and “knowingly mutilates.”36 Now the statute was a different animal, aimed at countering “the defiant destruction and mutilation of draft cards by dissident persons who disapprove of national policy,” according to the Senate report, which predicted excessively: “If allowed to continue unchecked this contumacious conduct represents a potential threat to the exercise of the power to raise and support armies.”37 (It was the same argument used to justify arrests of draft opponents during World War I, under the 1917 Espionage Act.)
Revising the draft-card law, Congress had openly stated its goal of silencing “dissident persons,” yet in rejecting O’Brien’s appeal, the Supreme Court looked the other way and focused on the act of destruction. “When ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct,” the Court ruled, “a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Such limitations must be minimal, the justices cautioned, and the government’s interest—in this case, raising an army through conscription—must be “unrelated to the suppression of free speech.”
Draft-card burning has passed out of fashion in the absence of an active draft, but cross burning still occurs occasionally as the most poisonous symbol of white supremacy and the fiercest gesture of hatred against blacks and Jews. Whether government may criminalize the fiery cross depends on its purpose. “Cross burnings have been used to communicate both threats of violence and messages of shared ideology,” the Court noted in a 2003 case, Virginia v. Black. Therefore, criminal prosecution is constitutional only if the cross is burned with the intent to intimidate, and such intent must be proved separately at trial, the Court ruled 6–3. The majority held that the symbol could not be considered automatically intimidating, and so struck down part of a Virginia law that read, “Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”
The two cases, which the Court sent back for retrial, seemed to fall on each side of the line that the justices had drawn. In one, Ku Klux Klan members set a cross on fire in an empty field; in the other, a blazing cross was placed on a black family’s front lawn. As “a sign of celebration and ceremony” at a Klan rally, burning a cross might be “core political speech” protected under the First Amendment if no purpose of intimidation can be proved, the Court noted. By contrast, doing so in front of someone’s house might fall into the category of “unprotected speech,” defined in a long line of cases to include intimidation, obscenity, fraud, libel, and incitement to imminent crime.38
From 2000 through 2007, sixty cross burners were convicted in federal courts, and some drew heavy sentences: fifteen months for Kyle Shroyer of Muncie, Indiana, who set a cross ablaze in front of a biracial family’s home; three years for Ronald Joshua Youngblood, who ignited a cross in Michigan and then set off an explosion so a black family would run outside, see the display, and hopefully move away; and ten years for Matthew Curtis Marshall, one of five who lit a cross outside a black family’s home in Texas.39 State prosecutions have gone forward in Massachusetts, Mississippi, Idaho, New York, and elsewhere. As an example of the spreading suppression of offensive symbols, New York State in 2006 made the display of a swastika, along with the burning cross, a felony punishable by four years in prison.
But flags have struck chords of special resonance. The world around, pieces of colored cloth are elemental symbols invested with deep significance. They summon and rally various peoples to their historical narratives, ethnic roots, ancestral languages, and divine faiths. Groups identify themselves as distinctive, worthy, and superior under banners that can unfurl the passions of conquest and yearning, defiance and dignity, suffering and pride. All this from dyed fabric sewn into one pattern or another.
Both Confederate and Union flags were banned by Johnson County, Kentucky, whose population was split between sympathies for the North and the South.40 During the Vietnam War, bolts of blue material, used in Vietcong flags, were confiscated by the South Vietnamese government in a vain attempt to stop the symbols of communist allegiance and control from erupting all over the countryside. For years after Israel occupied the West Bank and Gaza Strip in the 1967 war, its troops tore down Palestinian flags and arrested Arabs
for displaying them—until 1993, when Israel accepted the concept of Palestinian statehood and its emblem. The American right claimed exclusive patriotic virtue by expropriating the Stars and Stripes during Vietnam, crudely equating love of the country with support for the war. And today, a century and a half after the American Civil War, the stars and bars of the Confederate flag are still woven with intertwining messages of regional honor and traditional racism, stirring pride and exultation in some, anger and insult in others.
After September 11, 2001, the American flag blossomed. It hung from highway overpasses and flew from fire trucks, decorated storefronts and restaurants, and was used as a kind of talisman that Muslims nervously hoped might ward off evil assumptions about their loyalties as they drove taxis and operated small businesses.
The flag reflected the nation’s moods, stirring raw emotions at both ends of the political spectrum. Three Miami firefighters who thought their country had not held firmly to principles were suspended for refusing to fly a flag on their fire engine. A school bus driver was ordered to remove the small flag he’d taped atop his side mirror, supposedly a safety violation.41 Most troubling, the local policemen who threatened John Fleming and other antiwar protesters for hanging the flag upside down did not know the Constitution or the case law, did not understand that freedom extends to expression in many forms, verbal and symbolic: a word, a song, a painting, a demonstration, a flag. The Supreme Court’s rulings had not penetrated to the grass roots.
After 9/11, flags used by protesters as counterpoints to the drums of war provoked constitutional violations by authorities across the country. Two Grinnell students in Iowa flying an inverted flag from their dorm window on September 26, 2002, were threatened with arrest by a couple of police officers who had been poorly advised by county prosecutors, all of whom the students then sued successfully.42 A Montana couple who hung an inverted flag to protest the Obama administration (“chock full o’ Marxists”) said they’d “received much criticism, angry visitation, and undue police surveillance.”43
A rougher confrontation occurred in Asheville, North Carolina, in July 2007, when Mark and Deborah Kuhn pinned protest signs to a flag—including a picture of Bush labeled “Out Now”—and hung it upside down on their porch. Unwanted attention came their way. A police officer visited after a complaint, then a man in fatigues appeared at the door, and a passerby took pictures ostentatiously. A week later, a sheriff’s deputy showed up with a copy of North Carolina’s flag desecration ordinance and asked for their identification so he could write them a citation. They refused and allegedly slammed the door on his hand; he supposedly pushed his way into the house, and the couple was taken to jail. Bailed out for $1,500 in a few hours, they had all charges dropped after ACLU intervention. But the sheriff kept their flag.44
Terri Jones hung a flag upside down in Iowa to protest inadequate mental health services after her son committed suicide following his return from combat in Iraq. She was not arrested, but officials in another county filed a misdemeanor charge against a friend of hers, a farmer named Dale Klyn, after he signaled his sympathy by flying an inverted flag from a tall pole on his property. The Iowa flag desecration statute was also brought to bear on Scott Wayne Roe, who hung a flag upside down in a less exalted protest—against overly zealous cops who interrupted his rock band’s loud rehearsal after complaints from neighbors.45
Together Klyn and Roe won a summary judgment in federal court that the state ordinance violated the Fourteenth Amendment’s guarantee of “due process of law” because its ban on showing “disrespect” to the flag was vague and subjective. That made it susceptible to unpredictable enforcement on the whim of an official’s personal taste, and therefore a denial of due process. Vagueness inhibits freedoms in two ways, courts have ruled: imprecision gives excessive discretion to the police, and it forces citizens into a guessing game about what behavior is illegal, thereby chilling the exercise of rights.46
One might think that these antiquated desecration laws would fall into ruin against their obvious unconstitutionality, that officials would be ashamed to enforce them, much less enact them anew. But just a week after the court’s decision, the Iowa House unanimously passed a slight revision, cynically attached to a bill establishing a veterans’ mental health program to meet Terri Jones’s demand. It defined “disrespect” more exactly, an effort to meet the judge’s objections, and thereby remained on the books awaiting a fresh challenge.47 Further, in creative defiance of the Supreme Court, an Indiana judge ordered David H. Stout not to touch any American flag while he was out on bail pending a trial for exercising his constitutional right to burn one in September 2001.48
In other words, employing the flag in protest may be a fundamental liberty, but it has to be repeatedly defended, litigated, and subjected to legislative debate. Forty-seven states still have laws modeled on the 1917 federal statute barring the flag’s desecration or its mere appearance in advertising or publicity. The prohibition was cited by Iowa authorities that year in ruling that newspapers couldn’t print the flag at the top of their editorial pages.49 If enforced today, the laws would bring woe to most political candidates when they saturate stages and TV commercials with the Stars and Stripes.
Instead of making sure that the law conforms with the Constitution, some politicians repeatedly try to make the Constitution conform with their notions of proper behavior. Again and again, Congress has introduced amendments to prohibit flag “desecration.” Using a religious term to describe a political act suggests how fervently the self-righteous seek immense state power to enforce a shallow reverence.
A flag amendment, a unique exception to the First Amendment, would insert a caveat unlike anything else in the Constitution. This is no idle threat. In 2006, the last time it was attempted, the amendment came within a single vote of mustering two-thirds of the Senate. Democrats Harry Reid of Nevada, Dianne Feinstein of California, Evan Bayh of Indiana, and Mary Landrieu of Louisiana joined the Republicans. There were just enough senators to defeat the measure, barely enough willing to be accused of coddling wretched flag burners. One more vote and the proposed amendment would have been on its way to the state legislatures, where three-fourths of them might have ratified it.50
With a flag amendment in place, it is not hard to imagine a future line of cases decided by an increasingly pro-government judiciary that would find little difference between burning a flag and burning the president in effigy, or showing the president satirized and ridiculed on a poster. The president is duly elected, after all. Would vitriolic attacks on his image, especially if he is popular in a time of war, not sully the entire nation, insult the whole people, and “desecrate” a symbol of America as surely as burning the flag itself? This view would not be entirely unprecedented. Recall that John Adams sought a certain immunity from derision by imprisoning editors under the Sedition Act, and Woodrow Wilson employed the force of law against his wartime critics.
The Court warned of that slippery slope. “To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries,” the majority said in Texas v. Johnson. “Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do.”
This may sound alarmist in an era of boisterous protest and debate. But the best constitutional minds always caution against trespassing on rights in ways that seem innocuous at first. Once breached, the wall is more difficult to sustain, mainly because judges often commit the sin of incrementalism. They may move inch by inch away from the original holding, using each slight erosion as a new benchmark from which to travel
another short distance, until the original is virtually obscured. We avoid these ends, as Justice Robert H. Jackson wrote decades earlier, “by avoiding these beginnings.”
He used the phrase in upholding a right that seemed only peripheral to the core liberty of free political speech: the right of schoolchildren to refuse to salute the flag and recite the Pledge of Allegiance. Requiring that ritual, Jackson argued, could lead to broader demands for expressions of specific ideas and loyalties.
The Court had flipped back and forth on the salute and the pledge. In 1940, the year before entry into the war raging in Europe, the justices upheld, “in the promotion of national cohesion,” a 1914 law in the small Pennsylvania town of Minersville forcing schoolchildren to salute the flag; oddly, the school used the straight-armed, palm-up gesture that had already been adopted by the Nazis. The appeal was brought by Jehovah’s Witnesses, the parents of Lillian and William Gobitis, ages twelve and ten, who were expelled for not performing an act they considered a violation of the biblical injunction against worshipping a graven image. Making them do so was justified, Justice Frankfurter wrote for the majority, because “national unity is the basis of national security.”51
The denial of the right to refuse did not last long. The Court reversed itself three years later when another Jehovah’s Witness, Walter Barnette, successfully challenged a flag-salute mandate that West Virginia had enacted following Gobitis. Now, writing for a majority of 6–3, Justice Jackson declared plainly: “The flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas … a short cut from mind to mind.” Citing Stromberg’s red-flag opinion, he proclaimed, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” So here and in other cases, fundamentally religious citizens defended free speech for all citizens.
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 29