Description: Act of physically “harming” the U.S. flag, usually through such means as burning or tearing; at times the term was also applied to verbal criticism of the flag or what it represents.
Significance: The Supreme Court upheld the right, under the First Amendment, of people to both verbally and physically assault the flag and, in so doing, helped define and extend the meaning of constitutionally protected symbolic speech.
The U.S. flag, a symbol of the nation, is displayed widely in front of government buildings, private homes, and commercial enterprises and used extensively as a design springboard for clothing, advertising, and a wide variety of other products. However, it attracted little interest and received little public display for more than eighty years after its original adoption as a symbol of the nation by the Continental Congress on June 14, 1777. Only the outbreak of the Civil War (1861-1865) transformed the flag into an object of public adoration although only, of course, in the North. The newly found 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. During the nation's rapid postwar industrialization, as the modern advertising industry developed, the flag became increasingly popular as a decorative accompaniment in the commercialization of a wide range of products. Gradually, after 1890, Union veterans and members of patriotichereditary groups such as the Sons of the American Revolution began to protest alleged commercial debasement of the flag, which they declared would ultimately cause the significance of both the flag and patriotism to degrade among the general public. After about 1900 the supposed threat to the flag shifted from commercialization to that allegedly posed by its use as a means of expressing political protest by 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 from all forms of alleged “desecration” (the harming of sacred religious objects) and succeeded in obtaining passage of flag desecration laws in all forty-eight states, with thirty-one states acting between 1897 and 1905 alone. The laws generally outlawed attaching anything to or placing any marks on the flag, using the flag in any manner for advertising purposes, and physically or verbally “harming” flags in any way, including, typically, publicly mutilating, trampling, defacing, defiling, defying, or casting contempt on the flag. The term “flag” was generally defined to mean any object of any form, size, or material that resembled the U.S. flag.
Early Court Rulings
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 affecting commercial interests. However, in Halter v. Nebraska (1907), the Supreme Court upheld Nebraska's law in sweeping terms that made clear the futility of any further legal challenges for the foreseeable future. In a case involving sales of Stars and Stripes beer, which had pictures of flags on the bottle labels, the Court declared 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,” 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 Court did not consider another flag desecration case until 1969, and during the interim period, the constitutionality of flag desecration laws was essentially considered beyond review by the lower courts. The Court revisited the issue during the Vietnam War, when flags were widely burned or used in other unorthodox ways to express political dissent (resulting in hundreds of flag desecration prosecutions). In Street v. New York (1969), the Court relied heavily on its rulings in Stromberg v. California (1931) and West Virginia State Board of Education v. Barnette (1943) to strike down flag desecration provisions that outlawed verbal disrespect for the flag as violating the First Amendment. The Court, by a 5-4 vote, overturned Street's flag desecration conviction on the grounds that because he had been charged under a provision of New York's law outlawing casting contempt on 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 any evident threat to the peace or incitement to violence, was held to violate the First Amendment because “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 completely avoided addressing the constitutionality of laws that banned physical flag desecration on the grounds that there was no need to decide the case “on a broader basis than the record before us imperatively requires.” Aside from Street, the Court in 1974 overturned convictions in two other Vietnam-era flag desecration cases, Goguen v. Smith and Spence v. Washington, which were both decided on narrow grounds that again avoided directly addressing the validity of state interests in protecting the physical integrity of the flag in light of First Amendment questions.
A Texas Flag Burning
In Texas v. Johnson (1989), which arose from a 1984 Dallas flag-burning incident, the Court directly faced the question of physical desecration of the flag, ruling by a 5-4 vote that Texas's venerated objects law had been unconstitutionally applied to Johnson. Texas advanced two interests as overriding Johnson's First Amendment rights, but the Court dismissed them. First, it found that the state's interest in maintaining order was not implicated because no disturbance of the peace occurred or threatened to occur because of Johnson's act. Second, regarding a need to preserve the flag as a national symbol, the Court held that because Johnson's guilt depended on the communicative nature of his conduct, the Texas statute violated the main principle behind the First Amendment, that the government cannot ban the expression of an idea because society finds that idea offensive or disagreeable. Citing its holding in Street that a state cannot criminally punish a person for speech critical of the flag, the Court declared flatly that Texas's attempt to distinguish between written or spoken words 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, the Court declared that the government cannot ban expression of ideas that it does not like because the expression takes a particular form; therefore, the state cannot criminally punish a person for burning a flag in political protest on the grounds that other means of expressing the same idea were available. The Court concluded that the principles of freedom reflected in the flag 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 this cherished emblem represents.” Johnson touched off an intense and massive uproar across the United States. Virtually every member of Congress endorsed resolutions condemning the ruling. To circumvent the ruling, most Democrats maintained that an ordinary law would suffice, but President George Bush and most Republicans maintained that a constitutional amendment would be required. The Democratic congressional leadership noted that Johnson struck down a Texas statute that forbade flag desecration likely to cause “serious offense” to observers, rather than, as the Court noted at one point, “protecting the physical integrity of the flag in all circumstances” and argued that the court might uphold such a “content neutral” law.
The 1989 Flag Protection Act
Whether due to a perceived cooling of public sentiment, to increasing signs of growing opposition to a constitutional amendment, or to increased acceptance of the argument that trying a statute first was preferable to a constitutional change, by October, 1989, the drive for a constitutional amendment, seemingly unstoppable in late June after President Bush endorsed it, was sputtering. On October 19, the constitutional amendment failed to reach the two-thirds majority it required in the Senate. However, both houses of Congress passed the proposed statutory alternative, the Flag Protection Act of 1989. The Flag Protection Act provided penalties of up to one year in jail and a one thousand dollar 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 act was to end flag burnings, its immediate impact was to spur perhaps the largest single wave of such incidents in U.S. history, as 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 act, the Court struck down the Flag Protection Act by a 5-4 vote in United States v. Eichman on June 11, 1990. The Eichman ruling essentially underlined Johnson, finding that the government's interest in protecting the flag's position as a symbol of the United States and certain ideals did not justify the infringement on First Amendment rights. Although conceding that the new law, unlike the Texas statute in Johnson, did not explicitly place content-based limits on the scope of prohibited conduct, the Court held that the Flag Protection Act 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. The Court added, “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worthy of 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. After Republicans gained control of both houses of Congress in 1994, the amendment was passed by the required two-thirds majority in the House in 1995, 1997, and 1999. However, in the Senate, it failed to gain a two-thirds vote (by three votes) in 1995, was never taken up during the 105th Congress (1997-1998), and appeared unlikely to be voted on in the 106th Congress.
- Curtis, Michael, ed. The Flag Burning Cases. Vol. 2 in The Constitution and the Flag. New York: Garland, 1993.
- Goldstein, Robert Justin. Burning the Flag: The Great 1989-1990 American Flag Desecration Controversy. Kent, Ohio: Kent State University Press, 1996.
- Goldstein, Robert Justin., ed. Desecrating the American Flag: Key Documents of the Controversy from the Civil War to 1995. Syracuse, N.Y.: Syracuse University Press, 1996.
- Goldstein, Robert Justin., ed. Flag Burning and Free Speech: The Case of “Texas v. Johnson.” Lawrence: University Press of Kansas, 2000.
- Goldstein, Robert Justin., ed. Saving “Old Glory”: The History of the American Flag Desecration Controversy. Boulder, Colo.: Westview Press, 1995.
- Miller, J. Anthony. “Texas v. Johnson”: The Flag Burning Case. Springfield, N.J.: Enslow, 1997.
- Welch, Michael. Flag Burning: Moral Panic and the Criminalization of Protest. New York: Aldine de Gruyter, 2000.