Flag Desecration (Update)

• Author: Leonard W. Levy
• Pages: 1061-1064

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The word "desecration" has religious overtones. It means defiling the sacred. Flag burning is the secular equivalent of the offense of BLASPHEMY, a verbal crime signifying an attack, by ridicule or rejection, against God, the Bible, Jesus Christ, Christianity, or religion itself. Flag burning is comparable to a verbal attack on the United States. Burning the nation's symbol signifies contempt and hatred by the flag burner of the things he or she believes the flag stands for, such as colonialism, imperialism, capitalism, exploitation, racism, or militarism. To the overwhelming majority of Americans, however, the flag embodies in a mystical and emotional way the loyalty and love they feel for the United States. With few exceptions we venerate the flag because it symbolizes both our unity and diversity; our commitment to freedom, equality, and justice; and perhaps above all, our constitutional system and its protection of individual rights.

Like blasphemy, therefore, flag burning tests the outermost limits of tolerance even in a free society. Burning the flag is a most offensive outrage that stretches to the breaking point the capacity of a nation to indulge dissidents. But that same form of desecration is not only an act of vandalism; it is symbolic expression that claims the protection of the free speech clause of the FIRST AMENDMENT. Therein lies the problem and the paradox: should the flag represent a nation whose people have a right to burn its revered symbol?

Imprisoning flag burners would not mean that book burning and thought control are next. We know how to distinguish vandalism from radical advocacy; we would not regard urinating on the Jefferson Memorial or spray painting graffiti on the Washington Monument as a form of constitutionally protected free speech. Special reasons exist for protecting the flag from the splenetic conduct of extremists. A society should be entitled to safeguard its most fundamental values, but dissenters have a right to express verbal opposition to everything we hold dear. Yet,

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nothing is solved by saying that it is better to live in a country where people are free to burn the flag if they wish, rather than in a country where they want to burn it but cannot. We know the difference between suppressing a particularly offensive mode of conduct and a particularly offensive message. The problem is, however, that the particular mode of conduct may be the vehicle for communicating that offensive message. To suppress the message by suppressing the conduct involves governmental abridgment of a First Amendment freedom. So the Supreme Court held in Texas v. Johnson in 1989.

In 1984 in Dallas, Gregory Johnson, a member of the Revolutionary Communist Youth Brigade, a Maoist society, publicly burned a stolen American flag to protest the renomination of RONALD REAGAN as the Republican candidate. While the flag burned, the protesters, including Maoists, chanted, "America, the red, white, and blue, we spit on you." That the flag burning communicated an unmistakable political message was contested by no one. The police arrested Johnson not for his message but for his manner of delivering it; he had violated a Texas statute that prohibited the desecration of a venerated object by acts that seriously offended onlookers.

State appellate courts reversed Johnson's conviction on ground that his conduct constituted constitutionally protected SYMBOLIC SPEECH. Given its context?the Republican convention; Reagan's foreign policy; the protestors' demonstrations, marches, speeches, and slogans?Johnson's burning...