Flag Desecration

Brief Flag History

Our national flag was created on June 14, 1776 when the Continental Congress, the same group that declared our independence from Great Britain, resolved that “the flag of the thirteen United States be thirteen stripes, alternate red and white: that the union be thirteen stars, white in a blue field, representing a new constellation.”1 But up to the Civil War, the national flag received little attention except on the Fourth of July or George Washington’s birthday. “Early Congresses discussed the flag infrequently and with marked indifference.”2 Public endorsements of the flag are a relatively recent phenomenon: the “Star Spangled Banner” only became national anthem in 1931 and “Stars and Stripes Forever” became the national march in 1987; Flag Day was established in 1949 and became Flag Week only in 1966; the pledge of allegiance was not adopted until 1942 when flag etiquette was codified.3

The first recorded case of flag desecration on American soil was in 1634 in colonial Massachusetts when the commander of a military company named Captain John Endicott protested the King’s alleged connection to the papacy by defacing part of the English flag.4 During the Revolutionary War a British flag was torn to pieces in New York in 1783. In 1844, a young man was killed while trying to stop a flag desecration in Philadelphia. Just before civil war hostilities broke out in 1861, southern mobs in Liberty Mississippi and Memphis, Tennessee desecrated the flag with impunity. After the Civil War, however, a man who stole a flag, dragged it in the mud and tore it to shreds during the reconstruction of the south was convicted of treason in a military court and executed.

During the 1896 election campaigns, politicians and their supporters began using the flag as a symbol for their candidacy in public appearances and hostile mobs often responded by mutilating the flags, thereby provoking street fights.5 Businesses also began using the flag in advertisements for their products, and in some cases put flag symbols on the products themselves. “[I]t was not the least bit uncommon to observe the flag affixed to commercial goods, much in the same way as heraldic symbols are today.”6 Thus, the first flag protection statute was passed in 1897 after the founding of the American Flag Association, which sought laws restricting the use of flags in political campaigns and advertising.7 For example, the American Flag Association complained to the U.S. Senate in 1902 that the flag appeared on food wrapping, cigars, pillow covers, and doormats, and was used in advertisements for bicycles, whisky, poolrooms, and variety shows.8 “This resulted in statutes passed by thirty-three more states by 1905 that banned putting words on a flag, or ‘publicly’ mutilating, defacing, or casting contempt on the flag ‘by words or act.’”9

These laws defined the flag in a broad way covering most anything remotely resembling the flag. Businesses wanting to use the flag won some lower court rulings allowing them to use the flag in their ads,10 but in 1907 the U.S. Supreme Court squashed that movement by upholding Nebraska’s law banning a beer company’s use of the flag on its bottles.11 In that case the court noted, “For that flag every true American has not simply an appreciation but a deep affection….Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.”12

One of the earliest uses of the flag protection statute to stifle political protest came during a bitter mining strike in Colorado in 1904.13 Two leaders of the Western Federation of Miners were arrested for printing a flyer protesting government suppression of the strike through martial law and arbitrary arrests. Their leaflet, titled, “Is Colorado in America?” used the national flag as its backdrop. Charges were dropped, however, when the defendants produced numerous examples of advertisements and circulars using the flag in similar ways.

The first flag contempt convictions involving political protest did not appear until World War I, and many of these cases did not involve any physical act at all, but only words casting contempt on the flag.14 For examples: a New York City minister was fined $100 and jailed thirty days in 1916 and again in 1917 for depicting the flag in an advertisement for a lecture in an allegedly insulting way, and then burning the flag on the eve of his trial; an Indiana baker was fined $5 in 1917 for saying “to hell with the flag” in a local bar; a New York City woman was jailed six months in 1916 for displaying a German flag, removing an American flag a neighbor had put up in place of her German flag, and saying, “to hell with the American flag, I want my own flag;” a Kansas man was convicted to contemptuous verbal abuse of the flag for remarks made in a local blacksmith’s shop;15 and a Montana man was sentenced to 10 to 20 years by refusing a mob’s demands that he kiss a flag and saying the flag was “nothing but a piece of cotton with a little paint” which “might be covered with microbes.”16

Few cases arose during the peacetime years between the World Wars, but increased dramatically as war tensions rose and some demanded demonstrations of support for the U.S. through flag rituals.17 In 1930 two young women who ran a children’s camp in New York were jailed three months each for refusing a mob’s demands to raise a flag; and a speaker in Monticello New York was charged with defiling the flag for blowing his nose with it and wiping his face and clothing on it. Between June 1935 and June 1943 some two thousand children were expelled from schools and parents prosecuted for refusing on religious grounds to participate in flag rituals. A Washington father was jailed and his son taken away for a year when the child refused to salute the flag. In Indiana, seven Jehovah’s witnessing were prosecuted for circulating literature opposing compulsory school flag saluting (they oppose it on the Biblical grounds that one shall not worship any “graven image.”) Five pled guilty and received light sentence while two pled not guilty and were then charged with “riotous conspiracy” resulting in 2 to 10 years jail sentences. Between May and October of 1940 some 1,500 Jehovah’s Witnesses were victims of mob violence in 355 communities in 44 states.

Even before the U.S. entered WWII, flag prosecutions rose, in many cases still for purely verbal remarks. Examples include: an Italian non-citizen fined $50 for flying the flag from an outhouse; a female German immigrant in New Jersey sentenced to 1-2 years in jail for tearing a small flag from her motorcycle and throwing to the ground while declaring her sympathy with Nazism; a nazi sympathizer fined $30 for spitting on a flag; a Maine man convicted in 1940 for pantomiming desecrating a flag while at home; an Arkansas man fined $50 and jailed for a day for refusing to salute the flag and calling it a “a rag” without eyes, ears or a mouth; a Chicago man fined $100 in 1944 for verbally abusing a flag; a New York delicatessen owner fined $50 in 1945 for displaying the flag in a reversed position in his store window.

Although courts sometimes found flag laws were wrongly applied in specific cases, no court found the flag laws unconstitutional per se.18 No defendant appealed to First Amendment protection and the convictions were routinely upheld under the “police power” doctrine, that is, the right of the state to prevent disturbances of the peace. Yet the police power justification for the law was often irrelevant to the facts of the case as the defendant’s conduct did not threaten any imminent lawlessness and this did not necessarily dovetail with the intent of the statutes to punish those who send the bad message of disrespect for the flag.

The beginnings of change came when the U.S. Supreme Court ruled in West Virgina Board of Education v. Barnette, 319 U.S. 624 (1943) that Jehovah Witnesses could not be compelled to salute the flag against their religious convictions: if a person cannot be punished for showing disrespect by omission, can a person be punished for showing disrespect by commission?

The process of change continued during cases arising from Vietnam War protests. In 1968, after a nationally televised incident in New York’s Central Park in which a flag was burned during a anti-war demonstration, Congress enacted the very first federal flag protection law. A unprecedented variety of prosecutions for flag desecration occurred thereafter around the country, including prosecutions for flag burning, painting, tearing, lowering, subordinating, conjoining with peace symbols or slogans, and improper display; for wearing the flag as a coverall, vest, shirt, poncho, cape, or patch; and for “artistic” uses including covering the private parts of a pictured nude woman and displaying the flag as a male sexual organ.19 The Supreme Court considered several more flag cases between 1969 and 1974, and although its rulings did not directly confront the issue of whether physical flag desecration done in political protest is constitutionally protected or not,20 they clearly did establish the principle that purely verbal contempt for the flag was protected speech and thereby “called into question the reasons surrounding the very existence of [flag protection] laws.”21 How so?

If the law is there to punish people for disturbing the peace when in fact the incidents do not disturb the peace, if the law is used to punish people for protesting and it is legal to protest, if government cannot prohibit speech merely because it offends, if government cannot require patriotism or rituals of patriotism, one must wonder what legal justification is left to support a flag law.

So when the U.S. Supreme Court finally did address physical desecration per se in 1989, it ruled in a 5-4 decision that a Texas flag protection law was too broad and therefore unconstitutional.22 In that case, a fringe political group calling itself the Revolutionary Communist Youth Brigade was protesting the re-nomination of President Reagan at the 1984 Republican Party national convention in Dallas. One hundred protestors ended up at City Hall, where Gregory Johnson “unfurled [an] American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted protest slogans such as: ‘ America, the red, white, and blue, we spit on you.’”23 Congress immediately responded with the Flag Protection Act in 1989, but that law was ruled unconstitutional by a 5-4 margin for the same reason in 1990.24

You may, of course, personally agree or disagree with these decisions, but do you understand now why the Wisconsin court had a legally “easy” decision when forced in the Janssen case to rule on the constitutionality of Wisconsin flag protection law? The state court must follow Supreme Court precedent, and our law was the same as the laws of Texas and Congress that it determined were unconstitutional. Overbreadth and vagueness are a common basis for voiding speech-restrictive laws.25

So the question now is, what, if anything should we do about legally protecting the national flag? Should we go without a flag protection law as X and Y have done for years? Should we try to pass a really carefully and narrowly drawn state law that might survive judicial scrutiny for overbreadth and vagueness? Should we try to pass a flag amendment to the U.S. Constitution, attempting thereby to make an end run around the courts?

Notes

1 8 Journal of the Continental Congress 1774-1789 at 464 (W. Ford ed. 1907). Arguably, George Washington created our first flag by desecrating an English flag when he took command of the colonial army. Washington removed the cross of St. George and the cross of St. Andrew and sewed six white striped onto the red field, thereby creating the 13 red and white stripes that exist even today. See W.O. Hart, “The Story of the American Flag,” 58 Am. L. Rev. 161 (1924) at 167.

2 Cecilia Elizabeth O’Leary, To Die For: The Paradox of American Patriotism (Princeton University Press, 2000), p. 20.

3 Goldstein, pp. 36-7.

4 Goldstein, p. 37.

5 Note, p. 346.

6 Albert M. Rosenblatt, “Flag Desecration Statutes: History and Analysis,” 2 Washington University Law Review 193 (Spring 1972), p. 197-8.

7 Goldstein, p. 38.

8 Goldstein, p. 38.

9 Norman Dorsen, “Flag Desecration in Courts, Congress and Country,” 17 T.M. Cooley Law Review 417 (Michaelmas Term 2000), p. 417.

10 Ruhstrat v. People, 185 Ill. 133, 57 N.E. 41 (1900), and People ex rel. McPike v. Van de Carr, 178 N.Y. 475, 70 N.E. 965 (1904).

11 Halter v. Nebraska, 205 U.S. 34 (1907). [list other early cases from Rosenblatt]

12 Halter at 41.

13 Goldstein, p. 40.

14 Goldstein, pp. 42-46.

15 State v. Schumacher 103 Kan. 741, 175 P. 978 (1918).

16 Ex Parte Starr 263 F. 145 (D. Mont. 1920).

17 Goldstein, p. 44.

18 list cases from rosenblatt

19 Rosenblatt citation and Goldstein, p. 53.

20 A flag-burning case from New York City attracted the most attention. A man heard a news report that civil rights leader James Meredith had been shot by a sniper in Mississippi and took his flag outside to a city intersection. He burned his flag there while shouting, “we don’t need no damn flag,” and “if they let that happen to Meredith we don’t need an American flag.” Street’s conviction was upheld in lower courts, but overturned by the U.S. Supreme Court on the grounds that Street was convicted for speaking defiant or contemptuous words about the flag, and that such political protest is constitutionally protected. In doing so, the court did not directly rule on flag burning, but rather only on Street’s words. Street v. New York, 394 U.S. 576 (1969), reversing 20 N.Y. 2d 231, 229 N.E. 2d 187, 282 N.Y.S. 2d 491 (1967). [add more rosenblatt and dorsen cases]

21 Rosenblatt, p. 208. Goldstein, p. 61-62 singles out Street v. New York and Smith v Goguen as especially signicant. Explain, see 16 of 62

22 Texas v. Johnson, 491 U.S. 397 (1989).

23 Texas v. Johnson at 399.

24 United States v. Eichman, 496 U.S. 310 (1990).

25 See, for example, the campus hate speech cases Doe v. University of Michigan, 721 F. Supp 852 (E.D. Mich 1989); UWM Post v. Board of Regents, 774 F. Supp 1163 (E.D. Wis. 1991); Dambrot v. Central Michigan University, 839 F. Supp 477 (E.D. Mich 1993); and Corry v. Stanford University, County of Santa Clara Superior Court, Case No. 740309, 27 February 1995. Each of these cases in turn cites numerous precedents regarding overbreadth and vagueness.