Flag Dwcratlan S>mbolic Speech and the Military

• Author: by Captain Robert M. Frazee
• Pages: 03

1. INTRODUCTION

   From the earliest periods in the history of mankind, banners, standards, and flags have been adopted as symbols of the power and history of the people who bare them. It would have been extraordinary if our founding fathers had not adopted a flag TO be recognized as the emblem of the new and independent American Republic. It has been our symbol in many wars, being carried into battle by our troops and reverently draping the caskets of those who fell. It signifies our national presence on ships, airplanes, schools, and army posts. It has been planted on the moon by the Apollo astranauta. Wherever I t flies, it signifies the pmence of the United States. The flag, by tradition, has been utilized a8 a campaign poster, a military recruiting poster, and as an eye-catching backdrop for the effective transmission of ideas. Presently living in the L'nited States are two generatiom of citizens who grew up beginning the school day with "I pledge allegiance to the flag of the United States of America and to the Republic far which it stands . . . ." Thus, unlike our British cousin who directs his national allegiance to the Crown, an American focuses his nationality, patriotism, and entire national being on the flag of the United States.

   The flag has been used to express loyalty to the United States and the American ideals. The President of the United States

   weam a small flag on the lapel of his suit; Rags are carried at the beginning of every parade: 811 football and baseball games start with the raising of the "Stars and Stripes" to the tune of the National Anthem; and political candidates depict the flag on their campaign buttons and posters. Sone of these Uses of the flag is thought improper by the American public.

   It is not surprising that during the height of the Vietnam conflict those individuals opposing the United States' involvement should seize upon the flag as a vehicle to dramatize their opinions and beliefs. Americans, who up to this time had become ac-customed ta many forms of protest, became outraged at the spectacle of the American flag being lowered from its staff, trampled underfoot, and "desecrated."

   The flag was used by those who were protesting against governmental action. It was burned on the courthouse steps, sewn to the seat of trousers, cut apart and fashioned into a vest, ' and sewn upside dawn an the back of shirts and jackets. a In one of the most papular musical plays of this era, B scene depicted a draftee being cloaked in a Rag while the following song was sung:

   Folding the Rag IS taking ewe of the nation Folding the Rag 11 putting It to bed for the night. I fell through a hole in the Rag:I'm falling through a hole m the Rag. Help! Don't put It down, bpnt m e around, crazy for the red, blue. and white Crazy for the red, blue, and white You look at me; what do you see? Crazy for the white, red, and blue: crazy for the white, red, and blue. 'Csuae I look different you think I'm subversive: e m ~ y for the blue, white, andred MY heart beats true for the red, white, and blue. Crazy for the blue, white, and red. Crazy for the blue, white, and red--and yellow. free. Crazy far the blue. white, red and yell~w.~The city of Atlantia, Georgia, withheld the use of the Civic Auditorium far performance of the musical claiming it would

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   2 Hodsdon Y. Buckion, 310 F. SUPP. 528 (D. Del. 1970).1 Gogven Y. Smlth, 343 F. Supp. 161 (D. Maaa. 1972). ab'd, 471 F.2d 88 (1st Cir. 1972). z f l 12 U.S.L.W. 419; 1U.S hlirch 25. 1Y74)

   I Peoples. Cawgdi, 274 Cai.App.2d Supp. 923, 78 Cal Rptr 3531 (1969).oppml diamhsd pm mkm, 396 U.S. 371 (1910).

   5 Oldmyd Y. Kugler, 327 F. SUPP. 176 (D.N.J. 1970). In addition to

   these acts whlch phymdiy deatroged the flar, the fl~gdeaim has been altered

   in many forms; Milton V. Younz, 328 F. Supp. 88 (ED. Ten". 1971) writing "GIUF Peace s Chsner" ~ C ~ O S S

   the Rag: Gxsthmey Y. Tom of East Hamp ran 347 F.2d 351 (Zd Clr. 1970) placing the peace aymbol in the blue Reld &ad of the atara: Jonea Y. Wsde, 388 F. Supp. 441 (N.D. Tex. 1972) auperimpoaing a peace symbol over the entm flag: Oldrosd V. Kugler, awn, pmntmg two atara red. Recently the ecologlati have entered their own design with a bvmber sticker ahowing the Rag with green and whlte .tripe3 and atara on a held of green.r "Don't Put It Down." Hair, Rsgni, Rado, MacDermot, Copyright 1968.R C.A., Xew York. N.Y166

   SYXBOLIC SPEECH

   violate the Georgia flag desecration statute. The shock of hearing "Old Glory" referred to as the "blue, white, and red" can easily be imagined.

   To counterbalance this "unAmerican" conduct, flag decals suddenly appeared everywhere. The R e d d s Digest distributed a fisg decal in one issue with the recommendation that It be afied to an automobile window. When construction workers placed dimilar decals an their hard hats, they were praised by President Nixon, and many city paliee farces added a flag patch to their uniforms. Americans did not raise their voices in proteat because of these uses of the flag. This conduct demonstrated a love of country, a patriotism that v'as consistent with acceptable use8 of the flag. Congress, having left flag protection to the states since the flag's adoption in 1777, enacted a flag desecration statute that provided that it was a criminal act for anyone to "knowingly cast contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it , . , .

   Whenever the flag was used to protest against governments! action, the actor would claim that his conduct was protected as free speech. Although freedom of speech is protected by the first amendment, certain restrictions an the exercise of this right are accepted. The Supreme Court has stated:

   It IS . . eiesr that a state may by general and nondiaerrminatory legidatmn regulate the times, the places and the manner of solieiting upon its streets, and of holding meetings theram; and may in other respects safeguard the pence, order and comfort of the community, withovt uneonatitvtian&lly invading the liberties protected by the Fourteenth Amendment.11These legislative restrictions, however, are only valid if they are not discriminatorily applied. If the issuing authority may exercise judgment over who will be given a permit based on any factor other than time, place, and manner, the ordinance will be struck down as unconstitutional because it may result in the prior

   7 Sautheaatern Promotions, Ltd V. City of Atlanta, 334 F. Supp. 334

   (N.D. Ga. 1971).

   Feb. 1969, at 104. The DIDEST offered additional decals for sde at Pnominal cast. The DeDartment of Defense ordered 1.6 million. Mar. 1969. at

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   190.

   9 Desecration of the Flag of the United States, IS U.S.C. WOO (1970).10 U.S. CONST. amend. I, "Cangrem shall make no law respecting anestablishment of reiigian, or pmhibitmg the free exercise thareof; 01 abndg-mg the freedomn of speech, or of the press; or the right of the people peaceably to srremble and to petition the Government far the redreas of griev-ances."

   11 Cantwell V. Connecticut, 310 US

   296, 304 (1940).

   censorship of diverse opinions. Likewise, the Supreme Court ha-held that a atate may protect the public peace by prohibiting the utterance of fighting aorde

   Since the government must allow diverse opinions to be ex-changed in the marketplace of Ideas, the polm have a duty to protect the protestor from harm rather than arrestins him for a breach of the peace. When the speaker pmses beyond the bounds of argument and permasion. however, and undertakes to incite a riot he may be arrested and removed from the scene." The state, therefore, may prohibit the expression of Ideas when there is a substantial public interest and there is a "clear and present danger" that the evil which the state has a right to protect against may come abaut.13

   Americans, granted these freedoms by the Constitution, are not content to merely express their dissent voca11y on the street corner; they like to act out their protests to wider audiences. The presence of television with its emphasis on v~sual communication adds an even greater stimulant to this acting-out syndrome. The Boston Tea Parts on December 16, 1773, could be called 3

   "cymhalic protest" which demonstrated dissatisfactmn wth the Tea Act of 1773. le More recently, sit-in demonstrations to symholize opposition to segregation practices have been approved by the Supreme Court as a proper exercise of first amendment freedoms. li Other conduct performed under the pretense of symbolic speech such as pouring blood over draft records, ?' wearing long hair in school, 2'' burning a draft card. ?'' and nude dancing, -'

   Chapiinrky v Xew Hampshire. 316 US. 668 (1942) la Edwards Y South Caialma, 372 U S 228 (19631I* Feiner r. Yew Yark, 340 s'.S 315 (1951)

   13 Sehenek 7.. United Stater, 248 U.S 47 (1918118 American3 may look back with pride on this revolutionarg event but the British undoubtedly riewed it aa a crime

   17 Brown V. Louisiana, 383 US. 131 (1966) public hbrari: Garner v Louisiana, 368 U.S 157 (1961) lunch counter, Tayler V. Lauisiana, 370

   V S 154 (1962) bus depot waiting room.

   United Starer T.. Eberhsrdt, 117 F.2d IO09 (4th Clr 1969), cert. denied. 397 C.S. BOB (19701, a protest against the Vietnam conflict.

   1' Richards , Thurston. 304 F Supp 499 !D. Mars. 1969). In this ease

   the afudent claimed his long hair indicated his assoelatm with the Youngergeneration, expressing an independent, aesthetic and social outlook and the determination to reiecr man) af the customs and ~alues of the alder penera-tian. The various eireuiti are split ai to whether school haircut regilafionr are a valid state function. Far a summary of the opinioni of the variou~ ~ircuifssee Birhop Y. Colsu, 450 F.2d 1069 (8th Cir. 1971).2" Enited States % O'Brien, 391 US 397 (1968)

   11 Callforma r LaRue, 401 E 8 BOB (19721 : Paladina L. City of Omaha, 336 F Supp. 897 (D Neb 1972). Hadger 5. Fitle, 332 F Supp 504 (D Seb. 19711168

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   SYMBOLIC SPEECH

   has been held not to...