As Americans, we are an opinionated bunch. Passionate about those opinions, we will go to great lengths to make our feelings known.
Take the U.S. flag. When it comes to this symbol of Democracy, you might say we are all wrapped up in its red, white and blueness. To some, it is a sacred symbol, not to be tampered with, stepped on, burned, or otherwise desecrated. To others, it is a symbol of our freedom to express ourselves and to protest.
Disagreements over how our flag should be treated have led to arrests and, in many cases, wound up in our highest court.
The most recent flag protest incident took place right here in Philadelphia, involving an 18-year-old South Jersey woman who tried to burn a “thin blue line” flag at Philly’s Pride Parade Sunday, June 10. The news site, Billy Penn.com reported she was arrested and spent nearly 30 hours in prison before being released from custody Monday afternoon. She is being charged with attempted arson and related charges. You can read the entire story here. Of course, the woman’s attempted flag burning generated an immediate response from both sides of the political spectrum. So far, she has not been charged with desecrating the flag.
That could be because the flag she tried to burn was a “thin blue line” flag that resembles the American flag, but is not actually the flag. There’s also the matter of several U.S. Supreme Court cases that permit flag burning under certain circumstances as a symbolic act protected by the First Amendment.
The Supreme Court’s been debating the flag’s rights since the World War II era. In a 2012 CNN interview, Justice Antonin Scalia weighed in on the issue of flag burning. His comment was reported in a Sept. 27, 2017 article in the National Constitution Center’s Constitution Daily.
“If I were king, I would not allow people to go around burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged -- and it is addressed in particular to speech critical of the government. That was the main kind of speech that tyrants would seek to suppress.”
In 1974, in a 6-3 majority decision in Smith v. Goguen, the Supreme Court decided Massachusetts couldn’t jail a man for wearing a version of the U.S. flag sewn to the seat of his jeans. The Massachusetts statute was held to be unconstitutionally “void for vagueness.”
Still, Justice Byron White argued that the Constitution did allow laws to prevent flag burning. “There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial or to prevent overlaying it with words or other objects. The flag is, itself, a monument, subject to similar protection,” he wrote.
That same year, in Spence v. Washington, the Supreme Court held that the state of Washington could not convict a person for attaching removable tape in the form of a peace sign to a flag as a protest against the U.S. invasion of Cambodia and the Kent State killings. This ruling was the first time the Court clearly stated that protest involving the physical use of the flag should be seen as a form of protected expression under the First Amendment.
Jump ahead to 1989 and a landmark flag desecration case, Texas v. Johnson. The Supreme Court ruled 5-4 that a Texas law making it a crime to desecrate the flag was unconstitutional, deciding that Gregory Lee Johnson could burn an American flag at the Republican National Convention in Dallas, even though it violated Texas law.
According to the Constitution Daily article, the Justices decided that his action was symbolic political speech and could be expressed since his conduct did not threaten to disturb the peace.
“Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression,” said Justice William Brennan. “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.”
Justice John Paul Stevens offered a powerful dissent in support of the American flag’s protection as a unique symbol. “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for -- and our history demonstrates that they are -- it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration,” Stevens said.
Today, many states, including Pennsylvania, continue to keep flag desecration laws on the books, according to an article on ThoughtCo.com, even though they are largely void because of the Supreme Court rulings. Removing them is not a popular move with legislators and constituents, despite their conflict with the Constitution.