TIME: Almanac 1993/TIME Almanac 1993.iso/time/070389/07038900.068

Text File | 1992-09-23 | 9.0 KB | 182 lines

                                                                                NATION, Page 14

O'er the Land of The Free


A decision upholding the right to burn the flag is the best
reason not to

By Walter Isaacson


    The American flag, that most inspiring of the nation's
icons, has come to symbolize a great deal in its 212 years. It
celebrates the country's history, its freedoms, and the battles
fought to secure those freedoms. It embodies, often in an
intensely emotional way, the love and loyalty most Americans
feel for their country. It stands for the unity of one nation
and for the individual rights of each citizen. And now, because
of a landmark ruling by a deeply divided Supreme Court, the
American flag represents a land where people have the right to
burn the American flag.

    Burn an American flag? The patriotic mind recoils. Reverence
for the flag is ingrained in every schoolchild who has quailed
at the thought of letting it touch the ground, in every citizen
moved by pictures of it being raised at Iwo Jima or planted on
the moon, in every veteran who has ever heard taps played at the
end of a Memorial Day parade, in every gold-star mother who
treasures a neatly folded emblem of her family's supreme
sacrifice.

    But it is precisely this veneration that makes burning the
flag such a potent form of speech. And for the flag to truly
stand for freedom of speech, the Supreme Court declared, it
must stand for its most potent forms. "We do not consecrate the
flag by punishing its desecration," Justice William Brennan
wrote, "for in doing so we dilute the freedom that this
cherished emblem represents." Indeed, the decision that
Americans have the right to desecrate their flag could be seen
as yet another persuasive reason not to do so.

    The case involved Gregory ("Joey") Johnson, 32, a member of
the Revolutionary Communist Youth Brigade, who torched an
American flag outside the 1984 Republican Convention in Dallas.
"America, the red, white and blue, we spit on you," chanted the
crowd. Until now, despite the frequency with which the flag had
been burned at antiwar rallies in the 1960s and '70s, the
Supreme Court had avoided a direct ruling on whether the
Government could prohibit such acts.

    The opinion in favor of Johnson was written, not
surprisingly, by one of the court's last liberal lions,
Brennan. Equally unsurprising, the most consistent conservative
on the bench, Chief Justice William Rehnquist, crafted the main
dissent. What was noteworthy, however, was the unusual lineup
behind them. John Paul Stevens, who by virtue of the court's
rightward swing is now considered a liberal, joined with Sandra
Day O'Connor and Byron White in dissent. On the other side,
Ronald Reagan's two conservative appointees, Antonin Scalia and
Anthony Kennedy, showed that when basic First Amendment rights
were involved, they could come down in defense even of flag
burning. Thurgood Marshall and Harry Blackmun rounded out the
5-to-4 majority.

    The case boiled down to the most fundamental question that
faces America's constitutional form of governance: To what
extent can society enforce its standards without infringing too
far on the rights of those in the minority? Rehnquist provided a
classic formulation of the conservative position: "Surely one of
the high purposes of a democratic society is to legislate
against conduct that is regarded as evil and profoundly
offensive to the majority of people." Brennan offered the
liberal response: "If there is a bedrock principle underlying
the First Amendment, it is that the Government may not prohibit
the expression of an idea simply because society finds the idea
itself offensive or disagreeable."

    The court's decision was based on the premise that burning
the flag was a form of symbolic speech. "We decline," Brennan
wrote, "to create for the flag an exception to the joust of
principles protected by the First Amendment." Such a decision
does not denigrate the flag, he argued. "Our decision is a
reaffirmation of the principles of freedom and inclusiveness
that the flag best reflects."

    Kennedy's concurrence obviously caused him anguish. "The
flag holds a lonely place of honor in an age when absolutes are
distrusted," he noted. Nevertheless, Kennedy concluded, "it is
poignant but fundamental that the flag protects those who hold
it in contempt."

    Rehnquist rejected the premise that flag burning was a form
of symbolic speech, calling it the "equivalent of an
inarticulate grunt or roar." In his separate dissent, Stevens
made the case that the flag as a symbol is "worthy of
protection from unnecessary desecration." He cited a variety of
cases where the Government might legitimately restrict free
expression in order to protect other interests: the writing of
graffiti on the Washington Monument, painting or projecting
movie messages on the Lincoln Memorial, extinguishing the
eternal flame at John Kennedy's grave.

    Acts of vandalism such as these clearly are not protected by
the court's ruling. Likewise, not all flag burning is protected.
A person who attacks Old Glory flying over a public building
could still be charged with vandalism, trespassing or other
crimes. If the burning of a flag would "tend to incite an
immediate breach of the peace," that too could still be
considered a crime. As Oliver Wendell Holmes might have said,
freedom of speech does not give a person the right to set a
flag on fire in a crowded theater.

    The ruling does, however, invalidate laws in 48 states (the
exceptions are Alaska and Wyoming) and at the federal level that
prohibit the desecration of the flag. It also presumably would
have protected the provocative display at the School of the Art
Institute of Chicago at which, earlier this year, an American
flag was placed on the floor, where viewers might step on it.

    After the court announced its decision last week, Joey
Johnson proudly posed with charred flags. "I think it was great
to see a symbol of international plunder and murder go up in
flames," he said. His lawyer, David Cole, was slightly less
inflammatory: "If free expression is to exist in this country,
people must be as free to burn the flag as they are to wave
it." Civil liberties advocates approved, though some were
worried that the case had been decided by so narrow a margin.
"James Madison, who wrote the First Amendment, would have his
heart warmed by the decision," said David O'Brien, a professor
of political science at the University of Virginia, "but he
would have been appalled that it was a 5-to-4 vote."

    Veterans around the country, on the other hand, were
outraged that they had risked their lives to protect a flag so
that others might have the right to burn it. Said Don Bracken,
the adjutant quartermaster of the Veterans of Foreign Wars
chapter in Seattle: "The flag is a symbol of the U.S., and when
you destroy that flag, you destroy the principles of our
country." Conservative activists such as Patrick McGuigan of
the Free Congress Foundation saw the ruling as yet another
attack on traditional values. "The Supreme Court has told us
schoolchildren may wear printed obscenities on their shirts but
may not pray at the start of the school day," he said. "Now it
tells us the majority may not protect our most precious symbol
of national unity, Old Glory."

    Official Washington too was caught up in the paroxysms of
patriotism. The Senate voted 97-to-3 for a resolution by
majority leader George Mitchell and minority leader Bob Dole
that expressed "profound disappointment" in the decision. "I
will join the efforts of other members of Congress in
rectifying this action, including supporting a constitutional
amendment, if necessary," Georgia Democrat Sam Nunn declared.

    The outpouring of political rhetoric reflected the success
George Bush had last fall visiting a flag factory in New Jersey
and attacking Michael Dukakis for once vetoing a bill that
would have required teachers to lead their students in the
Pledge of Allegiance each day. "Flag burning is wrong -- dead
wrong," Bush pronounced after the court's ruling.

    Most Americans would agree. But as the court pointed out,
jailing people for burning the flag -- or forcing them to recite
the Pledge of Allegiance -- is not what patriotism in America
is really all about. That is the type of coerced patriotism that
can be found elsewhere, in the darker corners of the globe. True
patriotism comes from the heart and not from the barrel of a
gun.

    In his emotional dissent, Justice Rehnquist included the
text of The Star-Spangled Banner. Its words tell the story of
the flag's survival amid British bombs bursting over Fort
McHenry -- an image of a banner resilient in the face of flame.
Similarly, as long as the freedom for which it stands is
resolutely respected, the flag is certain to survive the flames
of all the Joey Johnsons who would wish otherwise. "And it is
this resilience," proclaimed Justice Brennan, "that we
re-reassert today."


-- Steven Holmes/Washington