TIME: Almanac 1990/1990 Time Magazine Compact Almanac, The (1991)(Time).iso/time/070389/07038900.068

Text File | 1990-09-22 | 9KB | 164 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