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Flag Burning Op-Ed 7/89 [OA 4422]
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Flag Burning Op-Ed 7/89 [OA 4422]
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Records of the White House Office of Speechwriting (George H. W. Bush Administration)
Mary Kate Grant Subject Files
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Originally Processed With FOIA(s):
FOIA Number:
S; 2004-1280-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection: George H.W. Bush Presidential Records
Collection/Office of Origin: Speechwriting, White House Office of
Series:
Grant, Mary Kate, Files
Subseries:
Subject File, 1988-1991
OA/ID Number:
13880
Folder ID Number:
13880-010
Folder Title:
Flag Burning Op-Ed, 7/89
Stack:
Row:
Section:
Shelf:
Position:
G
19
2
7
5
( (Grant))
July 19, 1989
Draft three
A:flagburn
PROPOSED ARTICLE ON CONSTITUTIONAL AMENDMENT
PROHIBITING FLAG-BURNING
TO BE AUTHORED BY AN ADMINISTRATION SURROGATE
An ironic and compelling scene took place earlier this week
at a congressional hearing, yet the incident went largely
unreported by the national press. Former U.S. Solicitor General
the
who had decided that
Charles Fried, a man often the target of conservative darts
would stay out of the want
during the Reagan Administration for his reluctance to embrace
flag- burning case,
right-wing causes, sat ready to testify before a subcommittee of
the House Judiciary Committee. He was there to support a
statutory remedy (as opposed to a constitutional amendment) to
(desecration)
the Supreme Court's decision that flag-burning is a protected
form of free speech.
The Subcommittee had just heard from Assistant Attorney
General William Barr, who had eloquently outlined the case for a
constitutional amendment; Fried had submitted prior written
testimony in support of a flag-protection statute. Fried, to the
Subcommittee's chagrin, instead testified that upon reflection,
his argument for a statute was untenable. "Bill Barr made a very
devastating attack
This was a very powerful then argument. I
oppose either wasn't sure before I heard Bill's Lor testimony." He went on to say
that should a legislative change be necessary, only a
constitutional amendment would do the job Subcommittee members
sat slack-jawed at the reversal.
how confusing and unsettling the issue
is for many people who specialist
in constitutional law.
The episode illustrates the conflicting passions and
seemingly (tricky) contradictory reasoning involved in this debate. One
thing, however, is clear: All sides agree that 2= the vast majority
of Americans find desecration of our flag offensive and tand demeans
they think it diminishes Four freedoms.
disagreeable, and those who defile it willfully should not be
Those allowed who to get argue off that scot free. If this were toleronee not true, 48 of states Alas -burning
and the federal government would not have had statutes on the
is the price of liberty 2 have a strong for in the
books common sense of the people
outlawing desecration of the flag.
about the suppression
Texas vs. Johnson was not a case concerning the outlawing of
about the lawfulness
opinions, but rather outlawing only a certain manner 2 of a certain mamer
of expressing them. As Judge Robert Bork pointed out in his
testimony before the same committee, some political expressions
are "disagreeable" and illegal -- delivering a political message
over television in obscenities, or expressing a political
viewpoint through indecent public behavior, or delivering a
political message with a sound truck at 2 a.m. in a residential
neighborhood. Using the Supreme Court's rationale in Texas vs.
Similarly Johnson, none of these actions could be outlawed or punished.
Yet, (Abel in an earlier flag-burning case, Street vs. New York liberal
Justice Fortas wrote, "One may not justify burning a house, even
if it is his own, on the ground, however sincere, that he does so
as a protest. One may not justify breaking the windows of a
government building on that basis. Protest does not exonerate
lawlessness."
Judge Bork agreed. "Putting out of bounds a few means of
expression in no way threatens the American system of freedom of
can only
there is simply no political thought
speech, he testified. An amendment putting desecration of the
or flag openion out of bounds that does needs not to endanger be expressed our free by speech. discreting the flog.
What, then, is the best way to put flag-burning "out of
bounds"? To answer this requires an examination of the issues at
stake in the Texas vs. Johnson decision. The Supreme Court (ital) held
that since the flag is "pregnant with expressive content, " all
meantaspolificalprotest
flag burning is expressive conduct; to protect the flag from such
Thus, the Supreme
actions constitutes suppression of expression.
Court has held that flag desecration S by its ( very nature protected
The Government
has two interests that could justify the prohibition of
by the First
expressive behavior as it relates to flags: preservation of the Amendment. e
peace, and preservation of the flag as a symbol of our Nation.
liberals say that They
Some observers are supporting a statutory remedy for the
protection of the flag rewording the laws that previously
stood to make it a crime to mishandle the flag in public or
private, regardless of intent. The statutes that have been
requiring the prosecution of
proposed are absurdly broad and would "pose a serious threat to
civil liberties by criminalizing a broad range of innocent and
unoffensive conduct, " according to the Department of Justice. In
other words, we'd have to prosecute boy scouts who let flags
accidently hit the ground, or even those flag-burners who fully
intend to desecrate the flag -- but only in the privacy of their
Some own of homes. the same Why violate people who the sanctity are usually of the apoplectic home for about flag Government intrusions
have had a sudden change It heartacher t comes to the Hog. Whit av
mishandling, when we preserve its privacy in SO many other cases?
tomathe 6 this sudden outburst 6 liberal patriotism?
Under the sweeping reasoning of Texas vs. Johnson U regarding
freedom of expression and the preservation of national symbols, a
flag protection statute would, of course, be held
15y the lower courts, with no need fan Supreme lawt review.)
unconstitutional The Assistant Attorney General explains: "The
purograph
The Framers of the Constitution specifically set up a
that
lengthy and difficult process of amendment, one which ensures
thoughtful examination and allows the American people to decide
the outcome. "We the People" are the first words of the
(or "We the Law Professors,"
Constitution, not "We the Congress To argue that a
Constitutional amendment "trivializes" the document, as some in
Congress have, is wrong -- if anything, it glorifies the
Constitution. (and the people's role in shoping it.)
the real trivialization comes from those who try to confuse the issue
To the contrary, statutory relief trivializes the document.
by advocating a phony statute, or proposing that ye probibit burning of the
Passing statute after statute, each getting swatted down by the
Constitution an the Presidential seal. Insert Bork quote here
Supreme Court, only demeans the process. Statute supporters are
playing games with the constitutional process by circumventing
the Framers' intentions. Just as some Congressmen tried with the
pay raise issue, this is an attempt to find an easy way to skirt
a tough vote. Only this time, the American people see right
through the smokescreen.
This is an issue above politics. III This strikes at the heart
of what makes America strong. Our flag is our national symbol,
and millions of Americans have fought and died for the Flag and
the important principles it symbolizes. We believe in our
freedoms, and will fight to keep our flag sacred. Enacting a
constitutional amendment is the only legally effective and
Let's cut through the smokescreens and
constitutionally sound way to do it. Let the voters decide, not
the politicians officians.
# # #
((Grant))
July 19, 1989
Draft three
A:flagburn
PROPOSED ARTICLE ON CONSTITUTIONAL AMENDMENT
PROHIBITING FLAG-BURNING
TO BE AUTHORED BY AN ADMINISTRATION SURROGATE
An ironic and compelling scene took place earlier this week
at a congressional hearing, yet the incident went largely
unreported by the the national press. Former U.S. Solicitor General
who had decided that
Charles Fried, a man often the target of conservative darts
would tay out of the went
during the Reagan Administration for his reluctance to embrace
flag burning case,
right wing causes, sat ready to testify before a subcommittee of
the House Judiciary Committee. He was there to support a
statutory remedy (as opposed to a constitutional amendment) to
(desecration)
the Supreme Court's decision that flag burning is a protected
form of free speech.
The Subcommittee had just heard from Assistant Attorney
General William Barr, who had eloquently outlined the case for a
constitutional amendment; Fried had submitted prior written
testimony in support of a flag-protection statute. Fried, to the
Subcommittee's chagrin, instead testified that upon reflection,
his argument for a statute was untenable. "Bill Barr made a very
devastating attack
This was a very powerful argument. I
then
(oppose either) wasn't sure before I heard Bill's Lor testimony." He went on to sayl say
that should a legislative change be necessary, only a
constitutional amendment would do the job Subcommittee members
sat slack-jawed at the reversal.
how confusing and unsettling the issue
is for many people who specialing
in constitutional law.
The episode illustrates the conflicting passions and
seemingly (tricky) contradictory reasoning involved in this debate One
thing, however, is clear: All sides agree that the vast majority
of Americans find desecration of our flag offensive = and and demeans
they think it diminishes our freedoms.
disagreeable, and those who defile it willfully should not be
Those allowed who to get argue off that scot free If this were toleronee not true 48 of states Has burning
and the federal government would not have had statutes on the
is the nice of liberty 2 have a strong for in the
books Co mman ense of the be ople.
outlawing desecration the flag.
about the suppression
Texas vs. Johnson was not a case concerning the outlawing of
about the lawfulness
opinions, but rather outlawing only a certain manner 2 of a certain mamer
of expressing them. As Judge Robert Bork pointed out in his
testimony before the same committee, some political expressions
are "disagreeable" and illegal -- delivering a political message
over television in obscenities, or expressing a political
viewpoint through indecent public behavior, or delivering a
political message with a sound truck at 2 a.m. in a residential
neighborhood. Using the Supreme Court's rationale in Texas VS.
Similarly Johnson, none of these actions could be outlawed or punished.
Yet, in Abe an earlier flag-burning case, Street VS. New York liberal
Justice Fortas wrote, "One may not justify burning a house, even
if it is his own, on the ground, however sincere, that he does so
as a protest. One may not justify breaking the windows of a
government building on that basis. Protest does not exonerate
lawlessness."
Judge Bork agreed. "Putting out of bounds a few means of
expression in no way threatens the American system of freedom of
there is simply no political thought
speech, he testified. An amendment putting desecration of the
or flag opinion out of bounds that does needs not to endanger be expresed our free by speech. discurating the flog.
What, then, is the best way to put flag-burning "out of
bounds"? To answer this requires an examination of the issues at
stake in the Texas VS. Johnson decision. The Supreme Court held
ital
that since the flag is "pregnant with expressive content," all
memotaspoliticalprotest
flag burning is expressive conduct; to protect the flag from such
Thus, the Supreme
actions constitutes suppression of expression.
Court has held that Flag desecration is by its ( very nature protected
The Government
has two interests that could justify the prohibition of by the Americant First
expressive behavior as it relates to flags: preservation of the
e
peace, and preservation of the flag as a symbol of our Nation.
liberals say that they
)
Some observers are supporting a statutory remedy for the
protection of the flag rewording the laws that previously
stood to make it a crime to mishandle the flag in public or
private, regardless of intent. The statutes that have been
requiring the prosecution of
proposed are absurdly broad and would "pose a serious threat to
civil liberties by criminalizing a broad range of innocent and
unoffensive conduct," according to the Department of Justice. In
other words, we'd have to prosecute boy scouts who let flags
accidently hit the ground, or even those flag-burners who fully
intend to desecrate the flag -- but only in the privacy of their
[Some of the same people who are usually apoplectic about Government intrusions, into
own homes. Why violate the sanctity of the home for flag
have had a sudden change for heartachin t comes to the (log. what an
mishandling, when we preserve its privacy in so many other cases?
we to make of this sudden outburst 6 liberal patriotism?
Under the sweeping reasoning of Texas VS. Johnson regarding
freedom of expression and the preservation of national symbols, a
flag protection statute would, of course, be held
(by the lower courts, with no need fan Supreme Count review.)
unconstitutionall The Assistant Attorney General explains: "The
reason that a statue purporting to protect the Flag would be
unconstitutional is simple. In Texas VS. Johnson, the Court held
that whenever someone burns the Flag for expressive purposes,
that conduct is protected by the First Amendment; that to
prohibit such conduct, the Government must have a compelling
reason that is unrelated to expression; that the Government's
reason for protecting the Flag (to preserve it as a symbol of
national unity) is inherently and necessarily related to
expression; and that the Government's interest in protecting the
Flag as a symbol of our national unity can never be sufficiently
compelling to overcome an individual's First Amendment interest
in burning the Flag for communicative purposes. This reasoning
would extend to any Flag desecration statute enacted to protect
the Flag as a symbol of our nation."
In fact, even in a previous decision by the Court (Kime VS.
United States), Justice Brennan has written that a statute "that
simply outlawed any public burning or mutilation of the flag,
regardless of the expressive intent or nonintent of the actor,"
would be "invalid."
Why not also designate the Constitution as a national
symbol? Or the seal of the President Again, Judge Bork
responds: "Copies of the Constitution do not fly over our public
buildings and are not lowered to half mast when a national leader
dies. Nobody salutes the Presidential seal. Nobody pledges
allegiance to the Presidential seal. Marines did not fight their
way across Iwo Jima and up Mount Suribachi to raise the flag of
Rhode Island, a copy of the Constitution, or the Presidential
Insut in next to last
paragraph
Insert w next 1 last paragraph
seal. The American people have thus demonstrated through
consistent conduct over many years that the flag of the United
States is a symbol different from all others.
supported by the President will avoid
The Constitutional amendment proposed by Congressmen Michel
this problem, and only throproblem. It reads:
and Montgomery and Senators Dole and Dixon is sufficiently narrow
to avoid these pitfalls: "The Congress and the States shall have
power to prohibit the physical desecration of the Flag of the
(Once this measure 9 nated
United States. Let 2 the peoples' representatives in Congress and
willbiable to
the state legislatures decide whether to prohibit flag burning
will be able tofix opperopriate limits on the prohibition. This is not the
and the extent they feel punishment is necessary Allow them to
beginning of the end 1, the First Amendment, it to merely the
decide how specifically to define "flag" and "physical
desecration. 2 Simply give the States the framework and the
restoration 1 the people's traditional freedom to protect their flag.
legislative authority, then let the people decide. Even liberal
Chief Justice Earl Warren wrote that "the states and federal
government do have the power to protect the flag from acts of
desecration and disgrace." To give that power to them, an
amendment to the Constitution requires the approval of 2/3 of the
Congress, and 3/4 of the state legislatures. A statute, on the
other hand, requires only a simple majority of the Congress.
This points up a larger issue concerning a proposed statute.
those who are promoting this Solution, and resisting the President's
It is a dangerous precedent to allow a constitutional ruling to
constitutional amendment, cannot really believe that such a statate would
be reversed by a statute. If such a statute were enacted, the
be enforced by the courts. they are just trying to buy time in hopes
gates would be opened for those who want to change all other
that the issue will go away. For what they fear most of all
constitutional rulings by statute. This would mean that the
is that the people will be reminded that it is their Constitution and
Congress could overrule the Supreme Court on a regular basis, by
their a simple majority vote. Bill of Rights; just as it is is their flog.
The Framers of the Constitution specifically set up a
lengthy and difficult process of amendment, one which that ensures
thoughtful examination and allows the American people to decide
the outcome. "We the People" are the first words of the
(or "We the Law Professors."
Constitution, not "We the Congress To argue that a
Constitutional amendment "trivializes" the document, as some in
Congress have is wrong -- if anything, it glorifies the
Constitution (and the people's role in stoping it.
the real trivialization comes from those who try to confuse the issue
To the contrary, statutory relief trivializes the document
by advocating a phony statute, or proposing that ye probibit burning of the
Passing statute after statute, each getting swatted down by the
Constitutions an the Presidential seal. Insert Bork guote here
Supreme Court, only demeans the process Statute supporters are
playing games with the constitutional process by circumventing
the Framers' intentions. Just as some Congressmen tried with the
pay raise issue this is an attempt to find an easy way to skirt
a tough vote. Only this time, the American people see right
through the smokescreen.
It
This is an issue above politics. This strikes at the heart
of what makes America strong. Our flag is our national symbol,
and millions of Americans have fought and died for the Flag and
the important principles it symbolizes. We believe in our
freedoms, and will fight to keep our flag sacred. Enacting a
constitutional amendment is the only legally effective and
(Let's cut through the smokescreens and
constitutionally sound way to do it. Let the voters decide; not
the politicians
# 1 #
-
THE WHITE HOUSE
WASHINGTON
Date: 7/24
TO: Many Kate Grant
FROM:
NELSON LUND
Associate Counsel
to the President
Action
Comments
FYI
A few
Sug gestions.
July 24, 1989
PROPOSED ARTICLE ON CONSTITUTIONAL AMENDMENT
PROHIBITING FLAG-BURNING
An ironic and compelling scene took place earlier this week
at a congressional hearing, yet the incident went largely
unreported by the national press. Former U.S. Solicitor General
(Kept
Charles Fried, the man who had decided that the Reagan
Administration would stay out of the recent flag-burning case,
sat ready to testify before a subcommittee of the House Judiciary
Committee. He was there to support a statutory remedy (as
opposed to a constitutional amendment) to the Supreme Court's
decision that flag desecration is a protected form of free
speech.
The Subcommittee had just heard from Assistant Administration's Attorney
General William Barr, who had eloquently outlined the case for a
constitutional amendment; Fried had submitted prior written
testimony in support of a flag-protection statute. Fried, to the
Subcommittee's chagrin, instead testified that upon reflection,
his argument for a statute was untenable. "Bill Barr made a very
devastating attack
...
This was a very powerful argument. I
wasn't sure before I heard Bill's testimony." He then went on to
oppose either a legislative change or a constitutional amendment.
Subcommittee members sat slack-jawed at the reversal.
The episode illustrates how confusing and unsettling the
issue is for many people who specialize in constitutional law.
One thing, however, is clear: The vast majority of Americans find
desecration of our flag offensive and disagreeable, and they
2
think that it diminishes and demeans our freedoms. Those who
argue that tolerance of flag-burning is the price of liberty have
a strong foe in the common sense of the people.
Texas vs. Johnson was not a case about the suppression of
opinions, but about the lawfulness of a certain manner of
expressing them. As Judge Robert Bork pointed out in his
testimony before the same committee, some political expressions
are "disagreeable" and illegal -- delivering a political message
over television in obscenities, or expressing a political
viewpoint through indecent public behavior, or delivering a
political message with a sound truck at 2 a.m. in a residential
neighborhood. Similarly, in an earlier flag-burning case,
liberal Justice Abe Fortas wrote, "One may not justify burning a
house, even if it is his own, on the ground, however sincere,
that he does so as a protest. One may not justify breaking the
windows of a government building on that basis. Protest does not
exonerate lawlessness."
Judge Bork agreed. "Putting out of bounds a few means of
expression in no way threatens the American system of freedom of
speech, " he testified. There is simply no political thought or
(only)
opinion that can only be expressed by desecrating the flag.
What, then, is the best way to put flag-burning "out of
bounds"? To answer this requires an examination of the issues at
stake in the Texas vs. Johnson decision. The Supreme Court held
that since the flag is "pregnant with expressive content, all
flag-burning meant as political protest is expressive conduct; to
3
protect the flag from such actions constitutes suppression of
expression. Thus, the Supreme Court has held that flag
desecration is by its very nature protected by the First
Amendment.
Some observers say that they are supporting a statutory
remedy for the protection of the flag: rewording the laws that
previously stood to make it a crime to mishandle the flag in
public or private, regardless of intent. The statutes that have
been proposed are absurdly broad, requiring the prosecution of
boy scouts who let flags accidently hit the ground, or even those
flag-burners who intend to desecrate the flag -- but only in the
privacy of their own homes. Some of the same people who are
usually apoplectic about Government intrusion into the sanctity
of the home have had a sudden change of heart when it comes to
the flag.
Under the sweeping reasoning of Texas vs. Johnson, a flag
protection statute would, of course, be held unconstitutional by
the lower courts with no need for Supreme Court review. The
Assistant Attorney General explains: "The reason that a statue (=t=)
purporting to protect the Flag would be unconstitutional is
simple. In Texas vs. Johnson, the Court held that whenever
someone burns the Flag for expressive purposes, that conduct is
protected by the First Amendment; that to prohibit such conduct,
the Government must have a compelling reason that is unrelated to
expression; that the Government's reason for protecting the Flag
(to preserve it as a symbol of national unity) is inherently and
4
necessarily related to expression; and that the Government's
interest in protecting the Flag as a symbol of our national unity
can never be sufficiently compelling to overcome an individual's
First Amendment interest in burning the Flag for communicative
purposes. This reasoning would extend to any Flag desecration
statute enacted to protect the Flag as a symbol of our nation."
The Constitutional amendment supported by the President will
avoid this problem, and only this problem. It reads: "The
Congress and the States shall have power to prohibit the physical
desecration of the Flag of the United States." Once this measure
is enacted, the peoples' representatives in Congress and the
state legislatures will be able to decide whether to prohibit
flag burning, and will be able to fix appropriate limits on the
prohibition. This is not the beginning of the end of the First
Amendment, it is merely the restoration of the people's
traditional freedom to protect their flag. Even liberal Chief
Justice Earl Warren wrote that "the states and federal government
do have the power to protect the flag from acts of desecration
and disgrace."
This points up a larger issue concerning a proposed statute.
Those who are promoting this solution, and resisting the
President's constitutional amendment, cannot really believe that
such a statute would be enforced by the courts. They are just
trying to buy time in hopes that the issue will just go away.
The Framers of the Constitution specifically set up a
lengthy and difficult process of amendment, one that ensures
5
thoughtful examination and allows the American people to decide
the outcome. "We the People" are the first words of the
Constitution, not "We the Congress" or "We the Law Professors."
To argue that a Constitutional amendment "trivializes" the
document, as some in Congress have, is wrong -- if anything, it
glorifies the Constitution and the people's role in shaping it.
The real trivialization comes from those who try to confuse
the issue by advocating a phony statute, or proposing that we
prohibit burning of the Constitution or the Presidential seal.
Again, Judge Bork responds: "Copies of the Constitution do not
fly over our public buildings and are not lowered to half mast
when a national leader dies. Nobody salutes the Presidential
seal. Nobody pledges allegiance to the Presidential seal.
Marines did not fight their way across Iwo Jima and up Mount
Suribachi to raise the flag of Rhode Island, a copy of the
Constitution, or the Presidential seal. The American people have
thus demonstrated through consistent conduct over many years that
the flag of the United States is a symbol different from all
others."
This is an issue above politics. It strikes at the heart of
what makes America strong. Our flag is our national symbol, and
millions of Americans have fought and died for the Flag and the
important principles it symbolizes. We believe in our freedoms,
and will fight to keep our flag sacred. Enacting a
constitutional amendment is the only legally effective and
6
constitutionally sound way to do it. Let's cut through the
smokescreens and let the voters decide.
# # #
MK / go w/droge w
except where
noted
as
Her are Some Smail
comments. I won't be
back until about 2pm.
I'ld like to tighten up pp3.4.
F46 it back toyor
( (Grant))
July 19, 1989
100ks just
Draft two
Brat
A:flagburn
PROPOSED ARTICLE ON CONSTITUTIONAL AMENDMENT
PROHIBITING FLAG-BURNING
TO BE AUTHORED BY AN ADMINISTRATION SURROGATE
An ironic and compelling scene took place earlier this week
at a Congressional hearing, yet the incident went largely
unreported by the national press. Former U.S. Solicitor General
Charles Fried, a man often the target of conservative darts
during the Reagan Administration for his reluctance to embrace
right-wing causes, sat ready to testify before a subcommittee of
the House Judiciary Committee. He was there to support a
statutory remedy (as opposed to a Constitutional amendment) to
the Supreme Court's decision that flag-burning is a protected
form of free speech.
The Subcommittee had just heard from Assistant Attorney
General William Barr, who had eloquently outlined the case for a
Constitutional amendment; Fried had submitted prior written
testimony in support of a flag-protection statute. Fried, to the
Subcommittee's chagrin, instead testified that upon reflection,
his argument for a statute was untenable. "Bill Barr made a very
devastating attack ... This was a very powerful argument. I
wasn't sure before I heard Bill's testimony." He went on to say
that should a legislative change be necessary, only a
Constitutional amendment would do the job. Subcommittee members
sat slack-jawed at the reversal.
The episode illustrates the conflicting passions and
seemingly contradictory reasoning involved in this debate. One
thing, however, is clear: All sides agree that most Americans
the just Ma jurity of
find desecration of our flag offensive and disagreeable, and
those who defile it willfully should not be allowed to get off
scot-free. If this were not true, 48 states and the federal
government would not have had statutes on the books outlawing
desecration of the flag.
Texas vs. Johnson was not a case concerning the outlawing of
opinions, but rather outlawing only a certain manner of
expressing them. As Judge Robert Bork pointed out in his
testimony before the same committee, some political expressions
are "disagreeable" and illegal -- delivering a political message
over television in obscenities, or expressing a political
viewpoint through indecent public behavior, or delivering a
political message with a sound truck at 2 a.m. in a residential
Using the Supreme Carrt's rationale in
neighborhood. Under the reasoning of Texas vs. Johnson, none of
these actions could be outlawed or punished. Yet, in an earlier
flag-burning case, Street VS. New York, Justice Fortas wrote,
"One may not justify burning a house, even if it is his own, on
the ground, however sincere, that he does so as a protest. One
may not justify breaking the windows of a government building on
that basis. Protest does not exonerate lawlessness."
Judge Bork agreed. "Putting out of bounds a few means of
expression in no way threatens the American system of freedom of
speech,' he testified. An amendment putting desecration of the
flag out of bounds does not endanger our free speech.
What, then, is the best way to put flag-burning "out of
bounds"? To answer this requires an examination of the issues at
stake in the Texas VS. Johnson decision. The Supreme Court held
that since the flag is "pregnant with expressive content," all
flag burning is expressive conduct; to protect the flag from such
actions constitutes suppression of expression. The Government has two
interests
that could instlfy the prohibition of
may prohibit expressive behavior as it relates to flags; for two
reasons: preservation of the peace, and preservation of the flag
as a symbol of our Nation.
On the first, the Court ruled that the Government may not
assume that flag-burning is a breach of the peace -- it does not
incite a riot every time -- so therefore a burning flag is not
considered the equivalent of "fighting words," which would cause
an onlooker to jump into a fistfight over the incident.
This condensed,
Secondly, to protect the flag as a national symbol directly
relates to the "suppression of expression," and the Court ruled
think about
that the Government's interest in preserving that symbol will
never prevail over the individual's freedom of expression. The
Court also brings up the "slippery slope" issue of designating
the flag a "national symbol." Why not also designate the
Constitution? The seal of the President? Moreover, the Court
pointed out that the flag itself has no independent
constitutional protection from an individual's right to express
himself by burning it.
Again, Judge Bork responds: "Copies of the Constitution do
not fly over our public buildings and are not lowered to half
mast when a national leader dies. Nobody salutes the
Presidential seal. Nobody pledges allegiance to the Presidential
seal. Marines did not fight their way across Iwo Jima and up
Mount Suribachi to raise the flag of Rhode Island, a copy of the
Constitution, or the Presidential seal. The American people have
thus demonstrated through consistent conduct over many years that
the flag of the United States is a symbol different from all
others."
Some observers are supporting a statutory remedy for the
protection of the flag -- rewording the laws that previously
stood -- to make it a crime to mishandle the flag in public or
private, regardless of intent. The statutes that have been
proposed are absurdly broad and would "pose a serious threat to
civil liberties by criminalizing a broad range of innocent and
unoffensive conduct," according to the Department of Justice. In
other words, we'd have to prosecute boy scouts who let flags
accidently hit the ground, or even those flag-burners who fully
intend to desecrate the flag -- but only in the privacy of their
own homes. Why violate the sanctity of the home for flag
mishandling, when we preserve its privacy in so many other cases?
Under the sweeping reasoning of Texas VS. Johnson regarding
freedom of expression and the preservation of national symbols, a
flag protection statute would, of course, be held
unconstitutional.
The Assistant Attorney General explains: "The reason that a
statue purporting to protect the Flag would be unconstitutional
is simple. In Texas VS. Johnson, the Court held that whenever
someone burns the Flag for expressive purposes, that conduct is
protected byt he First Amendment; that to prohibit such conduct,
the Government must have a compelling reason that is unrelated to
expression; that the Government's reason for protecting the Flag
(to preserve it as a symbol of national unity) is inherently and
necessarily related to expression; and that the Government's
interest in protecting the Flag as a symbol of our national unity
can never be sufficiently compelling to overcome an individual's
First Amendment interest in burning the Flag for communicative
purposes. This reasoning would extend to any Flag desecration
statute enacted to protect the Flag as a symbol of our nation."
In fact, even in a previous decision by the Court (Kime VS.
United States), Justice Brennan has written that a statute "that
simply outlawed any public burning or mutilation of the flag,
regardless of the expressive intent or nonintent of the actor,"
would be "invalid."
The Constitutional amendment proposed by Congressmen Michel
and Montgomery and Senators Dole and Dixon is sufficiently narrow
to avoid these pitfalls: "The Congress and the States shall have
power to prohibit the physical desecration of the Flag of the
peoples' representatives in Congress the
United States. " Let the states decide whether to prohibit flag
regislitures
burning, and the extent they feel punishment is necessary. Allow
them to decide how specifically to define "flag" and "physical
desecration. " Simply give the States the framework and the
legislative authority, then let the people decide. Even liberal
Chief Justice Earl Warren wrote that "the states and federal
government do have the power to protect the flag from acts of
desecration and disgrace." To give that power to them, an
amendment to the Constitution requires the approval of 2/3 of the
Congress, and 3/4 of the state legislatures. A statute, on the
other hand, requires only a simple majority of the Congress.
This points up a larger issue concerning a proposed statute.
It is a dangerous precedent to allow a constitutional ruling to
be reversed by a statute. If such a statute were enacted, the
gates would be opened for those who want to change all other
constitutional rulings by statute. This would mean that the
Congress could overrule the Supreme Court on a regular basis, by
a simple majority vote.
ensures thoughful examination and
The Framers of the Constitution specifically set up a
lengthy and difficult process of amendment, one which allows the
American people to decide the outcome. "We the People" are the
first words of the Constitution, not "We the Congress." To argue
that a Constitutional amendment "trivializes" the document, as
some in Congress have, is wrong -- if anything, it glorifies the
Constitution.
To the contrary, statutory relief trivializes the document.
Passing statute after statute, each getting swatted down by the
Supreme Court, only demeans the process. Statute supporters are
playing games with the Constitutional process by circumventing
the Framers' intentions. Just as some Congressmen tried with the
pay raise issue, this is an attempt to find an easy way to skirt
a tough vote. Only this time, the American people see right
through the smokescreen.
This is an issue above politics. This strikes at the heart
of what makes America strong. Our flag is our national symbol,
have fought and died for the Elegand
all
the important priviciples itsymbulsees
fought for and died over by millions of Americans before us! us We
and
believe in our freedoms, but will fight to keep our flag sacred.
Enacting a Constitutional amendment is the only legally effective
and constitutionally sound way to do it. Let the voters decide,
not the politicians.
###
REVISED
TESTIMONY OF CHARLES FRIED 1
July 19, 1989
Gregory Lee Johnson's burning of the American flag
was a vile and distressing act. I do not like coming here to
urge you to leave alone the laws and Constitution that say
he may not be punished for that act. But because I was given
the privilege of serving in high public office, as head of
the Office of Solicitor General for almost four years during
the second Reagan Administration, and because I am now
again a teacher of the law, where I have convictions I
think it is appropriate to share them with you. You have
heard and will hear much technical legal argument on this
issue, and during the questions for which I hope to leave
time, I stand ready to enter into that technical debate.
But what I owe you particularly is testimony about my per-
1. Charles, Fried has taught at Harvard Law School since
1961. During the October Term, 1960 he was law clerk to Mr.
Justice John Marshall Harlan. He was Deputy and Counselor to
the Solicitor General from February through May, 1985, Ac-
ting Solicitor General thereafer, until October, 1985 when
he became the country's thirty eighth Solicitor General. On
Januray 20, 1989 he resigned his post to return to teaching.
1
sonal convictions as an American, an American who loves his
country and his flag and who owes America an uncommon debt.
I am humbled by the realization that those who have
spoken most feelingly on the opposite side of this debate --
President Bush, Chief Justice Rehnquist, Justice Stevens --
have all had the privilege of serving in the armed forces,
a service which obviously builds a special reverence for the
flag. But I too have had a distinct privilege and speak from
a special perspective: In 1948 as a boy of thirteen I took
an oath of allegiance and so by a deliberate act became an
American. I came here from Czechoslovakia, a country with a
deep and humane tradition of democratic values, crushed
first by the Nazis and then by the Soviets and their dis-
gusting little puppets. To the Czechs, at least from the
days when Woodrow Wilson befriended the nation's first Pres-
ident Thomas Masaryk -- America was a model and ideal. So
America, its traditions and values and its flag are impor-
tant to me. Foremost among those values is the principle
that no one shall be punished for his political expressions
-- no matter how offensive or bizarre. That commitment to
liberty is our first and greatest contribution to the his-
tory of mankind. I would not tamper with it. Though I do
not often agree with Justice Brennan, I agree with him
entirely that our disdainful tolerance of the likes of
2
Gregory Johnson only honors the flag he sought so ineffec-
tively to dishonor.
Remember how rare and glorious that national commit-
ment of ours is. I will not speak of tyrannies like Nazi
Germany, Cuba or Viet Nam where a good deal less than burn-
ing their flag will provoke a brutal official response. They
are too extreme to make the point. Consider instead the
case of republican France, which just now celebrates its
bicentennial and shares with us many common values. When
France had kings and those kings represented as does our
flag the national dignity and identity, they had a crime
called lese majeste, which punished severely any offense by
word or deed to the honor of the king or his name. With the
Revolution the concept remained; they just changed the name
to lese nation and hundreds were executed for nothing more
than words or symbolic acts which were felt to show insuffi-
cient
respect for the nation or the people. There is the
story (by no means extreme for those terrible days) of the
man who was sent to the guillotine for displaying the na-
tional flag, the tricolor with the colors reversed. I tell
this story because our two revolutions were closely con-
nected. Lafayette and Rochambeau fought side by side with
George Washington. Yet just when the French were consolidat-
ing their revolution in the bloodbath of the Terror, this
new nation chose to affirm itself by adopting the Bill of
3
4
Rights and the First Amendment. The totalitarian ideas and
vocabulary of the Terror have persisted and been invoked by
tyrants ever since. Ours is a different tradition. It
has brought to this country refugees from two hundred years
of tyrannies, tyrannies which have killed and imprisoned
people in the name of the honor and dignity of the nation.
I beg you not to tamper with our tradition.
Then
auguants
have
same
power
and
4
san
$
and
his
which are the under
Rep. Seesson then playing was catend concert
to
call
for
and convencing.
wour
with
Charles Fried testimony - - revised page 4A
ЧА
My good friends and colleagues, Rex Lee and Laurence Tribe,
have testified that a statute might be drawn that would pass constitutional
muster. For instance there are hints in some Supreme Court opinions that a
statute that did not speak specifically of some expressive purpose but pro-
scribed mistreatment of a flag in all circumstances might not run afoul of
the First Amendment. After all it has long been a crime to mutiliate or deface
the currency. 18 U.S.C. 333. In fact as Solicitor General I thought I would
have had a duty to attempt to defend the constitutionality of a statute drawn
in such more careful terms, which is why I determined not to enter the Johnson
case, lest I gratuitously cast doubt on the federal statute as it is presently
written. But as a private citizen I must tell you that I very much hope that
no such statute will be passed. I agree with the judgment that whatever the
technicalities, the evident purpose of such a statute would still be to punish
acts of expression, acts that do no harm except as they express political
convictions -- mistaken and sordid as those convictions are. I think this would
in any event be an undignified and unworthy way for Congress to play games
with a Supreme Court decision. If we act, we should act forthrightly -- this
is not a matter for tricky legalistic maneuvers. But I hope and urge and pray
that we will not act -- that no statute be passed and ofcourse that the Constitu-
tion not be amended. In short, I believe the Johnson case is right not just
as a matter of present constitutional law. It is right in principle.
Finally, let me say how I differ from of those who agree with
me on this particular issue. We can punish the burning of a flag which is not
the property of the flag-burner. We can punish the defacing of public monuments.
And it is silly to say that freedom of expression protects the right of protesters
We can
to pitch tents and sleep in
Lafayette Park -- the Supreme Court was right to say so in
Clark V. Community for Creative Non -Violence, 472 U.S. 38
(1985) I speak only of criminal punishment for burning a
a 1/ag
flag, that any one may own or manufacture. Further, we may
and should require that school children be led in a pledge
of allegiance -- a pledge like the one I took to become a
citizen -- excusing those with conscientious objections
(which is all the Supreme Court required in the Barnette
case.) And we may treat as disloyal to our country those who
burn or otherwise show disrespect to the flag and can
decline to offer or retain such persons in positions of
honor or trust. Two years ago, in Rankin V. McPherson, 107
s.ct. 2891 (1987), I filed a brief in the Supreme Court
arguing that a county law enforcement agency might constitu-
tionally dismiss an employee who had expressed the hope
that the next time someone shot at President Reagan they
would kill him. In a five to four decision the Supreme Court
disagreed with me. I think the Court was wrong. I hope that
5
the Court would at least agree that if Ms. McPherson had in-
stead burned the flag no law enforcement agency in the
United States should be required to retain her in its
employ. In short I think the government may take many steps
to affirm the values for which it stands and to promote
respect for the symbols of those values. As for the likes
of Gregory Lee Johnson, let us simply turn our backs on him.
6
((Grant))
July 19, 1989
Draft two
A:flagburn
PROPOSED ARTICLE ON CONSTITUTIONAL AMENDMENT
PROHIBITING FLAG-BURNING
TO BE AUTHORED BY AN ADMINISTRATION SURROGATE
An ironic and compelling scene took place earlier this week
at a Congressional hearing, yet the incident went largely
unreported by the national press. Former U.S. Solicitor General
Charles Fried, a man often the target of conservative darts
during the Reagan Administration for his reluctance to embrace
right-wing causes, sat ready to testify before a subcommittee of
the House Judiciary Committee. He was there to support a
statutory remedy (as opposed to a Constitutional amendment) to
the Supreme Court's decision that flag-burning is a protected
form of free speech.
The Subcommittee had just heard from Assistant Attorney
General William Barr, who had eloquently outlined the case for a
Constitutional amendment; Fried had submitted prior written
testimony in support of a flag-protection statute. Fried, to the
Subcommittee's chagrin, instead testified that upon reflection,
his argument for a statute was untenable. "Bill Barr made a very
devastating attack
...
This was a very powerful argument. I
wasn't sure before I heard Bill's testimony." He went on to say
that should a legislative change be necessary, only a
Constitutional amendment would do the job. Subcommittee members
sat slack-jawed at the reversal.
The episode illustrates the conflicting passions and
seemingly contradictory reasoning involved in this debate. One
thing, however, is clear: All sides agree that most Americans
find desecration of our flag offensive and disagreeable, and
those who defile it willfully should not be allowed to get off
scot-free. If this were not true, 48 states and the federal
government would not have had statutes on the books outlawing
desecration of the flag.
Texas vs. Johnson was not a case concerning the outlawing of
opinions, but rather outlawing only a certain manner of
expressing them. As Judge Robert Bork pointed out in his
testimony before the same committee, some political expressions
are "disagreeable" and illegal -- delivering a political message
over television in obscenities, or expressing a political
viewpoint through indecent public behavior, or delivering a
political message with a sound truck at 2 a.m. in a residential
neighborhood. Under the reasoning of Texas VS. Johnson, none of
these actions could be outlawed or punished. Yet, in an earlier
flag-burning case, Street VS. New York, Justice Fortas wrote,
"One may not justify burning a house, even if it is his own, on
the ground, however sincere, that he does so as a protest. One
may not justify breaking the windows of a government building on
that basis. Protest does not exonerate lawlessness."
Judge Bork agreed. "Putting out of bounds a few means of
expression in no way threatens the American system of freedom of
speech," he testified. An amendment putting desecration of the
flag out of bounds does not endanger our free speech.
What, then, is the best way to put flag-burning "out of
bounds"? To answer this requires an examination of the issues at
stake in the Texas vs. Johnson decision. The Supreme Court held
that since the flag is "pregnant with expressive content," all
flag burning is expressive conduct; to protect the flag from such
actions constitutes suppression of expression. The Government
may prohibit expressive behavior as it relates to flags for two
reasons: preservation of the peace, and preservation of the flag
as a symbol of our Nation.
On the first, the Court ruled that the Government may not
assume that flag-burning is a breach of the peace -- it does not
incite a riot every time -- so therefore a burning flag is not
considered the equivalent of "fighting words," which would cause
an onlooker to jump into a fistfight over the incident.
Secondly, to protect the flag as a national symbol directly
relates to the "suppression of expression," and the Court ruled
that the Government's interest in preserving that symbol will
never prevail over the individual's freedom of expression. The
Court also brings up the "slippery slope" issue of designating
the flag a "national symbol." Why not also designate the
Constitution? The seal of the President? Moreover, the Court
pointed out that the flag itself has no independent
constitutional protection from an individual's right to express
himself by burning it.
Again, Judge Bork responds: "Copies of the Constitution do
not fly over our public buildings and are not lowered to half
mast when a national leader dies. Nobody salutes the
Presidential seal. Nobody pledges allegiance to the Presidential
seal. Marines did not fight their way across Iwo Jima and up
Mount Suribachi to raise the flag of Rhode Island, a copy of the
Constitution, or the Presidential seal. The American people have
thus demonstrated through consistent conduct over many years that
the flag of the United States is a symbol different from all
others."
Some observers are supporting a statutory remedy for the
protection of the flag -- rewording the laws that previously
stood -- to make it a crime to mishandle the flag in public or
private, regardless of intent. The statutes that have been
proposed are absurdly broad and would "pose a serious threat to
civil liberties by criminalizing a broad range of innocent and
unoffensive conduct," according to the Department of Justice. In
other words, we'd have to prosecute boy scouts who let flags
accidently hit the ground, or even those flag-burners who fully
intend to desecrate the flag -- but only in the privacy of their
own homes. Why violate the sanctity of the home for flag
mishandling, when we preserve its privacy in so many other cases?
Under the sweeping reasoning of Texas vs. Johnson regarding
freedom of expression and the preservation of national symbols, a
flag protection statute would, of course, be held
unconstitutional.
The Assistant Attorney General explains: "The reason that a
statue purporting to protect the Flag would be unconstitutional
is simple. In Texas VS. Johnson, the Court held that whenever
someone burns the Flag for expressive purposes, that conduct is
protected byt he First Amendment; that to prohibit such conduct,
the Government must have a compelling reason that is unrelated to
expression; that the Government's reason for protecting the Flag
(to preserve it as a symbol of national unity) is inherently and
necessarily related to expression; and that the Government's
interest in protecting the Flag as a symbol of our national unity
can never be sufficiently compelling to overcome an individual's
First Amendment interest in burning the Flag for communicative
purposes. This reasoning would extend to any Flag desecration
statute enacted to protect the Flag as a symbol of our nation."
In fact, even in a previous decision by the Court (Kime vs.
United States), Justice Brennan has written that a statute "that
simply outlawed any public burning or mutilation of the flag,
regardless of the expressive intent or nonintent of the actor,"
would be "invalid."
The Constitutional amendment proposed by Congressmen Michel
and Montgomery and Senators Dole and Dixon is sufficiently narrow
to avoid these pitfalls: "The Congress and the States shall have
power to prohibit the physical desecration of the Flag of the
United States." Let the States decide whether to prohibit flag
burning, and the extent they feel punishment is necessary. Allow
them to decide how specifically to define "flag" and "physical
desecration." Simply give the States the framework and the
legislative authority, then let the people decide. Even liberal
Chief Justice Earl Warren wrote that "the states and federal
government do have the power to protect the flag from acts of
desecration and disgrace." To give that power to them, an
amendment to the Constitution requires the approval of 2/3 of the
Congress, and 3/4 of the state legislatures. A statute, on the
other hand, requires only a simple majority of the Congress.
This points up a larger issue concerning a proposed statute.
It is a dangerous precedent to allow a constitutional ruling to
be reversed by a statute. If such a statute were enacted, the
gates would be opened for those who want to change all other
constitutional rulings by statute. This would mean that the
Congress could overrule the Supreme Court on a regular basis, by
a simple majority vote.
The Framers of the Constitution specifically set up a
lengthy and difficult process of amendment, one which allows the
American people to decide the outcome. "We the People" are the
first words of the Constitution, not "We the Congress." To argue
that a Constitutional amendment "trivializes" the document, as
some in Congress have, is wrong -- if anything, it glorifies the
Constitution.
To the contrary, statutory relief trivializes the document.
Passing statute after statute, each getting swatted down by the
Supreme Court, only demeans the process. Statute supporters are
playing games with the Constitutional process by circumventing
the Framers' intentions. Just as some Congressmen tried with the
pay raise issue, this is an attempt to find an easy way to skirt
a tough vote. Only this time, the American people see right
through the smokescreen.
This is an issue above politics. This strikes at the heart
of what makes America strong. Our flag is our national symbol,
fought for and died over by millions of Americans before us. We
believe in our freedoms, but will fight to keep our flag sacred.
Enacting a Constitutional amendment is the only legally effective
and constitutionally sound way to do it. Let the voters decide,
not the politicians.
###
((Grant))
July 19, 1989
Draft two
A:flagburn
PROPOSED ARTICLE ON CONSTITUTIONAL AMENDMENT
PROHIBITING FLAG-BURNING
TO BE AUTHORED BY AN ADMINISTRATION SURROGATE
An ironic and compelling scene took place earlier this week
at a Congressional hearing, yet the incident went largely
unreported by the national press. Former U.S. Solicitor General
Charles Fried, a man often the target of conservative darts
during the Reagan Administration for his reluctance to embrace
right-wing causes, sat ready to testify before a subcommittee of
the House Judiciary Committee. He was there to support a
statutory remedy (as opposed to a Constitutional amendment) to
the Supreme Court's decision that flag-burning is a protected
form of free speech.
The Subcommittee had just heard from Assistant Attorney
General William Barr, who had eloquently outlined the case for a
Constitutional amendment; Fried had submitted prior written
testimony in support of a flag-protection statute. Fried, to the
Subcommittee's chagrin, instead testified that upon reflection,
his argument for a statute was untenable. "Bill Barr made a very
devastating attack
...
This was a very powerful argument. I
wasn't sure before I heard Bill's testimony." He went on to say
that should a legislative change be necessary, only a
Constitutional amendment would do the job. Subcommittee members
sat slack-jawed at the reversal.
The episode illustrates the conflicting passions and
seemingly contradictory reasoning involved in this debate. One
thing, however, is clear: All sides agree that most Americans
find desecration of our flag offensive and disagreeable, and
those who defile it willfully should not be allowed to get off
scot-free. If this were not true, 48 states and the federal
government would not have had statutes on the books outlawing
desecration of the flag.
Texas vs. Johnson was not a case concerning the outlawing of
opinions, but rather outlawing only a certain manner of
expressing them. As Judge Robert Bork pointed out in his
testimony before the same committee, some political expressions
are "disagreeable" and illegal -- delivering a political message
over television in obscenities, or expressing a political
viewpoint through indecent public behavior, or delivering a
political message with a sound truck at 2 a.m. in a residential
neighborhood. Under the reasoning of Texas VS. Johnson, none of
these actions could be outlawed or punished. Yet, in an earlier
flag-burning case, Street VS. New York, Justice Fortas wrote,
"One may not justify burning a house, even if it is his own, on
the ground, however sincere, that he does so as a protest. One
may not justify breaking the windows of a government building on
that basis. Protest does not exonerate lawlessness."
Judge Bork agreed. "Putting out of bounds a few means of
expression in no way threatens the American system of freedom of
speech," he testified. An amendment putting desecration of the
flag out of bounds does not endanger our free speech.
What, then, is the best way to put flag-burning "out of
bounds"? To answer this requires an examination of the issues at
stake in the Texas VS. Johnson decision. The Supreme Court held
that since the flag is "pregnant with expressive content,' all
flag burning is expressive conduct; to protect the flag from such
actions constitutes suppression of expression. The Government
may prohibit expressive behavior as it relates to flags for two
reasons: preservation of the peace, and preservation of the flag
as a symbol of our Nation.
On the first, the Court ruled that the Government may not
assume that flag-burning is a breach of the peace -- it does not
incite a riot every time -- so therefore a burning flag is not
considered the equivalent of "fighting words," which would cause
an onlooker to jump into a fistfight over the incident.
Secondly, to protect the flag as a national symbol directly
relates to the "suppression of expression," and the Court ruled
that the Government's interest in preserving that symbol will
never prevail over the individual's freedom of expression. The
Court also brings up the "slippery slope" issue of designating
the flag a "national symbol." Why not also designate the
Constitution? The seal of the President? Moreover, the Court
pointed out that the flag itself has no independent
constitutional protection from an individual's right to express
himself by burning it.
Again, Judge Bork responds: "Copies of the Constitution do
not fly over our public buildings and are not lowered to half
mast when a national leader dies. Nobody salutes the
Presidential seal. Nobody pledges allegiance to the Presidential
seal. Marines did not fight their way across Iwo Jima and up
Mount Suribachi to raise the flag of Rhode Island, a copy of the
Constitution, or the Presidential seal. The American people have
thus demonstrated through consistent conduct over many years that
the flag of the United States is a symbol different from all
others. "
Some observers are supporting a statutory remedy for the
protection of the flag --- rewording the laws that previously
stood -- to make it a crime to mishandle the flag in public or
private, regardless of intent. The statutes that have been
proposed are absurdly broad and would "pose a serious threat to
civil liberties by criminalizing a broad range of innocent and
unoffensive conduct," according to the Department of Justice. In
other words, we'd have to prosecute boy scouts who let flags
accidently hit the ground, or even those flag-burners who fully
intend to desecrate the flag -- but only in the privacy of their
own homes. Why violate the sanctity of the home for flag
mishandling, when we preserve its privacy in so many other cases?
Under the sweeping reasoning of Texas VS. Johnson regarding
freedom of expression and the preservation of national symbols, a
flag protection statute would, of course, be held
unconstitutional.
The Assistant Attorney General explains: "The reason that a
statue purporting to protect the Flag would be unconstitutional
is simple. In Texas VS. Johnson, the Court held that whenever
someone burns the Flag for expressive purposes, that conduct is
protected byt he First Amendment; that to prohibit such conduct,
the Government must have a compelling reason that is unrelated to
expression; that the Government's reason for protecting the Flag
(to preserve it as a symbol of national unity) is inherently and
necessarily related to expression; and that the Government's
interest in protecting the Flag as a symbol of our national unity
can never be sufficiently compelling to overcome an individual's
First Amendment interest in burning the Flag for communicative
purposes. This reasoning would extend to any Flag desecration
statute enacted to protect the Flag as a symbol of our nation."
In fact, even in a previous decision by the Court (Kime VS.
United States), Justice Brennan has written that a statute "that
simply outlawed any public burning or mutilation of the flag,
regardless of the expressive intent or nonintent of the actor,"
would be "invalid."
The Constitutional amendment proposed by Congressmen Michel
and Montgomery and Senators Dole and Dixon is sufficiently narrow
to avoid these pitfalls: "The Congress and the States shall have
power to prohibit the physical desecration of the Flag of the
United States." Let the States decide whether to prohibit flag
burning, and the extent they feel punishment is necessary. Allow
them to decide how specifically to define "flag" and "physical
desecration." Simply give the States the framework and the
legislative authority, then let the people decide. Even liberal
Chief Justice Earl Warren wrote that "the states and federal
government do have the power to protect the flag from acts of
desecration and disgrace." To give that power to them, an
amendment to the Constitution requires the approval of 2/3 of the
Congress, and 3/4 of the state legislatures. A statute, on the
other hand, requires only a simple majority of the Congress.
This points up a larger issue concerning a proposed statute.
It is a dangerous precedent to allow a constitutional ruling to
be reversed by a statute. If such a statute were enacted, the
gates would be opened for those who want to change all other
constitutional rulings by statute. This would mean that the
Congress could overrule the Supreme Court on a regular basis, by
a simple majority vote.
The Framers of the Constitution specifically set up a
lengthy and difficult process of amendment, one which allows the
American people to decide the outcome. "We the People" are the
first words of the Constitution, not "We the Congress." To argue
that a Constitutional amendment "trivializes" the document, as
some in Congress have, is wrong -- if anything, it glorifies the
Constitution.
To the contrary, statutory relief trivializes the document.
Passing statute after statute, each getting swatted down by the
Supreme Court, only demeans the process. Statute supporters are
playing games with the Constitutional process by circumventing
the Framers' intentions. Just as some Congressmen tried with the
pay raise issue, this is an attempt to find an easy way to skirt
a tough vote. Only this time, the American people see right
through the smokescreen.
This is an issue above politics. This strikes at the heart
of what makes America strong. Our flag is our national symbol,
fought for and died over by millions of Americans before us. } We
believe in our freedoms, but will fight to keep our flag sacred.
Enacting a Constitutional amendment is the only legally effective
and constitutionally sound way to do it. Let the voters decide,
not the politicians.
# # #
( (Grant))
July 19, 1989
Draft one
A:flagburn
PROPOSED ARTICLE ON CONSTITUTIONAL AMENDMENT
PROHIBITING FLAG-BURNING
TO BE AUTHORED BY AN ADMINISTRATION SURROGATE
An ironic and compelling scene took place earlier this week
at a Consursional hearny
before a House Judiciary subcommittee, yet the incident went
largely unreported by the national press. Former U.S. Solicitor
General Charles Fried a man often the target of conservative
darts during the Reagan Administration for his reluctance to
embrace right-wing causes of of sat ready to testify, in support of 7a on
before the House
He was
fat opposed a Constitutional Amendacat
there to
statutory remedy to the Supreme Court's decision that flag-
white
burning is a protected form of free speech.
The Subcommittee had just heard from Assistant Attorney
General William Barr, who had eloquently outlined the case for a
Constitutional amendment; Fried had submitted prior written
testimony in support of a flag-protection statute. Fried, to the
Subcommittee's chagrin, instead testified that upon reflection,
his argument for a statute was untenable. "Bill Barr made a very
devastating attack
This was a very powerful argument. I
wasn't sure before I heard Bill's testimony." He went on to say
that should a legislative change be necessary, only a
Constitutional amendment would do the job. Subcommittee members
sat slack-jawed at the reversal.
The episode illustrates the conflicting passions and
seemingly contradictory reasoning involved in this debate. One
thing, however, is clear: All sides agree that most Americans
find desecration of our flag offensive and disagreeable, and
those who defile it willfully should not be allowed to get off
scot-free. If this were not true, 48 states and the federal
government would not have had statutes on the books outlawing
desecration of the flag.
Texas VS. Johnson was not a case concerning the outlawing of
opinions, but rather outlawing only a certain manner of
expressing them. As Judge Robert Bork pointed out in his
testimony before the same committee, some political expressions
and illegal
are "disagreeable" -- delivering a political message over
television in obscenities, or expressing a political viewpoint
through indecent public behavior, or delivering a political
message with a sound truck at 2 a.m. in a residential
neighborhood. Under the reasoning of Texas VS. Johnson, none of
these actions could be prevented or punished. yet, vIn an earlier
outlawed
flag-burning case, Street VS. New York, Justice Fortas wrote,
"One may not justify burning a house, even if it is his own, on
the ground, however sincere, that he does so as a protest. One
may not justify breaking the windows of a government building on
that basis. Protest does not exonerate lawlessness."
Judge Bork agreed. "Putting out of bounds a few means of
expression in no way threatens the American system of freedom of
speech," he testified. An amendment putting desecration of the
flag out of bounds does not endanger our free speech.
What, then, is the best way to put flag-burning "out of
bounds"? To answer this requires an examination of the issues at
stake in the Texas VS. Johnson decision. The Supreme Court held
that since the flag is "pregnant with expressive content," all
flag burning is expressive conduct; to protect the flag from such
actions constitutes suppression of expression. The Government
may prohibit expressive behavior as it relates to flags for two
reasons: preservation of the peace, and preservation of the flag
as a symbol of our Nation.
On the first, the Court ruled that the Government may not
assume that flag-burning is a breach of the peace -- it does not
incite a riot every time -- so therefore a burning flag is not
considered the equivalent of "fighting words," which would cause
an onlooker to jump into a fistfight over the incident.
Secondly, to protect the flag as a national symbol directly
relates to the "suppression of expression," and the Court ruled
that the Government's interest in preserving that symbol will
never prevail over the individual's freedom of expression. The
Court also brings up the "slippery slope" issue of designating
the flag a "national symbol." Why not also designate the
Moreover,
Constitution? The seal of the President? The Court pointed out
itself - any other matt "national symboln
that the flag has no independent constitutional protection from
an individual's right to express himself by burning it.
Again, Judge Bork responds: "Copies of the Constitution do
not fly over our public buildings and are not lowered to half
mast when a national leader dies. Nobody salutes the
Presidential seal. Nobody pledges allegiance to the Presidential
seal. Marines did not fight their way across Iwo Jima and up
Mount Suribachi to raise the flag of Rhode Island, a copy of the
Constitution, or the Presidential seal. The American people have
thus demonstrated through consistent conduct over many years that
the flag of the United States is a symbol different from all
others. If
Some observers are supporting a statutory remedy for the
protection of the flag -- rewording the laws that previously
stood -- to make it crime to mishandle the flag in public or
private, regardless of intent. The statutes that have been
proposed are absurdly broad and would "pose a serious threat to
civil liberties by criminalizing a broad range of innocent and
Asst. AG
unoffensive conduct," according to the Department of Justice. In
other words, we'd have to prosecute boy scouts who let flags
accidently hit the ground, or even those flag-burners who fully
intend to desecrate the flag -- but only in the privacy of their
own homes. Why violate the sanctity of the home for flag
mishandling, when we preserve its privacy in so many other cases?
Under the sweeping reasoning of Texas VS. Johnson regarding
freedom of expression and the preservation of national symbols,
these a flag protection
Insurt
this statute would, of course, be held unconstitutional.
In
Barr
fact, even in a previous decision by the Court (Kime VS. United
p 3
States), Justice Brennan has written that a statute "that simply
outlawed any public burning or mutilation of the flag, regardless
of the expressive intent or nonintent of the actor, " would be
"invalid."
The Constitutional amendment proposed by Congressmen Michel
and Montgomery and Senators Dole and Dixon is sufficiently narrow
to avoid these pitfalls: "The Congress and the States shall have
power to prohibit the physical desecration of the Flag of the
United States." Let the States decide whether to prohibit flag
burning, and the extent they feel punishment is necessary. Let Allow
them to decide how specifically to define "flag" and "physical
desecration." Simply give the States the framework and the
legislative authority, then let the people decide. Even liberal
Chief Justice Earl Warren wrote that "the states and federal
government do have the power to protect the flag from acts of
desecration and disgrace." To give that power to them, an
amendment to the Constitution requires the approval of 2/3 of the
Congress, and 3/4 of the state legislatures. A statute, on the
other hand, requires only a simple majority of the Congress. so
much for what the people think.
This points up a larger issue concerning a proposed statute.
It is a dangerous precedent to allow a constitutional ruling to
be reversed by a statute. If such a statute were enacted, the
gates would be opened for those who want to change all other
constitutional rulings by statute. This would mean that the
Congress could overrule the Supreme Court on a regular basis, by
a simple majority vote.
The Framers of the Constitution specifically set up a
lengthy and difficult process of amendment, one which allows the
American people to decide the outcome. "We the People" are the
first words of the Constitution, not "We the Congress." To argue
as some in
that a Constitutional amendment "trivializes" the document, is
congress
wrong -- if anything, it glorifies the Const.
have,
document.
To the contrary, statutory relief trivializes the process.
Passing statute after statute, each getting swatted down by the
Supreme Court, only demeans the process. Statute supporters are
playing games with the Constitutional process by circumventing
the Framers' intentions. Just as some Congressmen tried with the
pay raise issue, this is an attempt to find an easy way to skirt
a tough vote. Only this time, the American people see right
through the smokescreen.
This is an issue above politics. This strikes at the heart
of what makes America strong. Our flag is our national symbol,
fought for and died over by millions of Americans before us. We
believe in our freedoms, but will fight to keep our flag sacred.
Enacting a Constitutional amendment is the only legally effective
and constitutionally sound way to do it. Let the voters decide,
not the politicians.
###
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TESTINONY OF ROBERT E. BORK*
BEFORE THE HOUSE JUDICIARY COMMITTEE,
SUBCONNITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS,
CONCERNING STATUTORY AND CONSTITUTIONAL RESPONSES
TO THE SUPREME COURT DECISION IN TEXAS V. JOHNSON
July 19, 1989
I am very pleased to testify at the invitation of this
Committee concerning the proposed amendment to the
constitution or the United States that would restore to
Congress and the States power to prevent the physical
desecration of the American flag.
There is no need to begin my testimony with a tribute to
the flag as the symbol of this Republic and the freedoms
that we enjoy under our system of government. Reverence for
the flag is the reason we are all here. But it is not merely
that Americans revere the flag that makes this subject so
important. If a multitude of individuals are also to be a
community, they must have symbols by which they live, symbols
that express their identity as a community. The United
States is a large and increasingly diverse and pluralistic
society. The one symbol that expresses our existence as a
community, the one symbol that stands above all others as an
expression of our nationhood, is the American flag. The flag
should be preserved inviolate as the one symbol that stands
above political and partisan ideological dispute.
# John M. Olin Scholar in Legal Studies, American
Enterprise Institute for Public Policy Research.
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Let me say at the outset that I favor the proposed
amendment. The Supreme Court's five-to-four decision in
Texas v. Johnson, which holds that flag burning is a mode of
expression protected by the First Amendment's guarantee of
the freedom or speech seems to me plainly wrong and to rest
upon propositions that either are not relevant or that cannot
be supported. It is also clear that the matter cannot be
cured by statute. Any such attempt would surely be defeated
by a holding of unconstitutionality if the Supreme Court
adheres to its rationale in Johnson. It is idle to suppose
that a constitutional ruling can be reversed by statute and
it would be dangerous to try. Should such an attempt
succeed, the way would be open to alter other constitutional
rulings by statute. That is the very thing that the judicial
application of the Constitution, as elaborated in Chief
Justice John Marshall's 1803 decision in Marbury v. Madison,
holds may not be done.
I turn first to the Supreme Court decision that created
the problem we face.
The first proposition relied upon by the five-Justice
majority in Johnson was: "If there is a bedrock principle
underlying the First Amendment, it is that Government may not
prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable." That
proposition certainly expresses First Amendment doctrine.
The difficulty is that the "bedrock principle" had no
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application to the question before the Court. The Texas
statute in question did not suppress any idea at all.
Johnson's idea, if it deserves the respect of being
called an idea rather than an amotion, was simply hatred of
the United States. He was and is entirely free to hate the
United States and to express his hatred in a hundred ways
other than by burning the flag. In faot, he and his fellow
demonstrators did express their hatred by chanting, "America,
the red, white, and blue, we spit on you," while the flag
burned. He was not prosecuted for that chant and no one
suggests that he could be. The First Amendment guarantees
his freedom to speak in that manner, though most of us find
his words not only "offensive and disagreeable" but
extraordinarily so. Under the Texas statute Johnson was free
to engage in any form of rhetoric about the flag and the
Republic it represents, to use any form of insulting
gestures he cared to. He was simply not free to desecrate
the flag physically.
While the First Amendment allows the expression of any
opinion or emotion, it has never been interpreted to allow
any and all means of expressing them. Even after the Johnson
decision, one supposes, the federal government or a state
government could punish such actions As delivering a
political message over television in obscenities, or
expressing a political viewpoint from a sound truck at two
o'clock in the morning in a residential neighborhood, or
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making a point by engaging in indecent public behavior. Yet
if the rationale of the Johnson decision were consistently
applied, none of these actions could be prevented or
punished.
Those are all powerful methods of expressing an idea or
an attitude. They are all strong methods of self-expression.
Why does the First Amendment allow them to be punished?
Simply because the community finds them extremely offensive
methods of making points that could be made in hundreds of
other ways. Simply because putting out of bounds a few means
of expression in no way threatens the American system of
freedom of speech.
We know that the physical desecration of the American
flag is like the use of obscenities or of indecent behavior
to express an idea. We know that because of the wave of
public outrage that followed the Supreme Court's decision in
Johnson. We know that because forty-eight States and the
United States had enacted laws prohibiting the physical
desecration of the flag.
The other proposition upon which the Supreme Court
majority rested fares no better, That proposition was the
familiar "slippery slope" argument. That argument has no
validity when there is a clear distinction between two cases
so that the Court can easily decide one without committing
itself to decide the other in the same way. Justice
Brennan's opinion for the majority stated:
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To conclude that the Government may permit
designated symbols to be used to communicate only a
limited set of messages would be to enter territory
having no discernible or defensible boundaries.
Could the Government, on this theory, prohibit the
burning of state flags? of copies of the
Presidential seal? of the constitution? In
evaluating these choices under the First Amendment,
how would we decide which symbols were sufficiently
special to warrant this unique status? To do so,
We would be forced to consult our own political
preferences, and impose them on the citizenry, in
the very way that the First Amendment forbids us to
do.
This argument is quite wide of the mark. The Justices need
not have consulted their own political preferences to decide
that the flag is a unique symbol any more than they need
consult their own moral and aesthetic preferences to decide
that government may punish indecent behavior. The
community's standards decide the question for the Court in
both instances.
No other object remotely resembles the flag as the
symbol of our identity as a nation. That is apparent from
objective considerations. No question of the Justices'
"preferences," political or otherwise, need be involved.
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Forty-eight States and the United States have not enacted
statutes prohibiting the burning of copies of the
Constitution. Copies of the Constitution do not fly over our
public buildings and are not lowered to half mast when a
national leader dies. Nobody salutes the Presidential seal.
Nobody pledges allegiance to the Presidential seal. Marines
did not fight their way across Iwo Jima and up Mount
Suribachi to raise the flag of Rhode Island, a copy of the
Constitution, or the Presidential seal. The American people
have thus demonstrated through consistent conduct over many
years that the flag of the United States is a symbol
different from all others.
We hear a good deal about the dangers of amending the
Constitution. I put aside for the moment the fact that the
Constitution itself explicitly provides for its own amendment
and that the process was deliberately made 50 difficult and
lengthy that no danger of rash action is to be apprehended.
The point I wish to make is that, in a very real sense, what
is proposed is less an amendment to the Constitution than an
amendment to the opinion of the Court which a change of one
vote would have caused to go the other way. It is highly
unlikely that any previous Supreme Court would have ruled as
this one did. Chief Justice Rehnquist's dissent notes that
in the past Chief Justice Earl Warren and Justices Hugo Black
and Abe Fortas all stated very forcefully that there was no
First Amendment problem with punishing the desecration of the
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flag. Those were liberal Justices and they were also very
protective of free speech. Indeed, Hugo Black described
himself as a First Amendment absolutist. The flag
desecration amendment is not actually an amendment to the
Constitution but rather a restoration of the Constitution.
That is why I favor the proposed constitutional
amendment which is both vital and narrowly drawn to prohibit
only the physical desecration of the American flag.
It has been said, however, that the problem may be cured
by statute rather than by adopting a constitutional
amendment. That is not the case. NO statute can be drawn
that will cure the problem created by Texas V. Johnson.
Before going to that, however, I want to say that the idea of
a statute circumventing a constitutional decision is not only
bizarre but, if it were possible, would constitute a
dangerous expedient. It would mean that Congress could
override the Supreme Court by simple majorities, if the
President acquiesced, and by two-thirds votes, if the
President objected. That is not the system of government
prescribed by the Constitution. It would be a vehicle for
quick and passionate response to unpopular Court decisions
even if those decisions ware entirely correct.
The Constitution, by contrast, prescribes a lengthy
deliberative process to ensure that not just a majority but a
supermajority of the American people agrees with the
proposal. Two-thirds of each House of Congress must propose
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the amendment and it must then be ratified by three-quarters
of the States. That ensures that no hasty, ill-considered
corrections will be adopted. But the Constitution also
theraby recognizes that when such a procedure is followed, it
is proper to rectify what the Court has done. That has been
done before in our history and no one has ever regretted it.
But the main point is that no statute can undo Texas V.
Johnson. In the first place, any statute passed in response
would be seen, correctly, as an attempt to change the result
of that case, no matter how neutrally the statute was worded.
second, the legislative history of the statute would reveal
that it was designed to prevent the expression of an idea by
deseorating the flag. Members of Congress can hardly be
expected unanimously to tell falsehoods about why they are
passing a statute. The Court has in the past looked to
legislative history for evidence of on unconstitutional
motivation. Third, Congress could articulate no reason for
prohibiting the defacement or destruction of the flag other
than the offensiveness of the mode of expression. That means
that when Johnson burned his next flag as a method of
expressing his hatred of the United states the lawyer
defending the statute would be required to articulate a
compelling governmental interest. He would be unable to do
so since the only governmental interest would be in
preventing flag burning as a means of expression, and that is
precisely what Johnson held unconstitutional. Fourth, lower
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courts would deolare the statute unconstitutional on the
basis of Johnson and the Supreme Court might not review those
decisions. After several years we would be right where we
are now.
It has bean suggested that a statute such as one
prohibiting an open fire in any public place would be neutral
as to expressive and non-expressive conduct and hence would
pass muster under the Johnson ruling. Quite aside from the
points just made, the statute would be utterly ineffective
since there are many ways of desecrating the flag other than
burning it. For example, in Chicago the flag was placed on
the ground for people to walk on. No statute can list all
the ways of desecrating a flag without mentioning desecration
or showing on its face that desecration is the evil aimed at.
Consideration of a statutory response to the Johnson
case will produce delay and nothing else. The responsible
course is for Congress to consider the constitutional
amendment and not be deflected by fruitless discussion of a
statute that is certain to fail.
I urge your favorable consideration of an amendment that
would restore the rights of the American community without
harming in the alightest the freedom of speech that is
central to all other freedoms.
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ROBERT HERON BORK, circuit judge, lawyer, educator;
University of Chicago, B.A. 1948, J.D. 1953. Born March 1,
1927, Pittsburgh, Pennsylvania. Married, Claire Davidson,
June 15, 1952, died, December 8, 1980; children, Robert H.,
Jr., Charles E., and Ellen E. Married, Mary Ellen Pohl,
October 30, 1982. Admitted to the Illinois bar, 1953, D.C.
bar, 1977. Associate and partner of the firm Kirkland,
Ellis, Hodson, Chaffetz & Masters, Chicago, Illinois, 1955-
1962; associate professor, Yale Law School, 1962-1965,
professor of law, 1965-1975, on leave, 1973-1975, Chancellor
Kent professor of law, 1977-1979, Alexander M. Bickel
professor of public law, 1979-1981, Solicitor General of the
United States, Department of Justice, Washington, D.C., 1973-
1977, acting Attorney General of the United States, 1973-
1974; resident scholar, American Enterprise Institute for
Public Policy Research, Washington, D.C., 1977, adjunct
scholar, 1977-1982) partner, Kirkland & Ellis, Washington,
D.C., 1981-1982, Circuit Judge, United States Court of
Appeals for the District of Columbia Circuit, 1982-1988;
nominated by President Reagan to position of Associate
Justice, Supreme Court of the United States, July 1, 1987;
confirmation denied by senate, October 23, 1987; resigned as
circuit Judge, United States court of Appeals for the
District of Columbia Circuit, February 3, 1988; appointed
John M. olin Scholar in Legal Studies, American Enterprise
Institute for Public Folicy Research, Washington, D.C.,
February 8, 1988. Member of the Presidential Task Force on
Antitrust, 1968; consultant, Cabinet committee on Education,
19721 trustee of the Woodrow Wilson International Center for
Scholars, 1973-1978; fellow, American Academy of Arts and
Sciences, 1981-present; recipient, Francis Boyer Award,
American Enterprise Institute for Public Policy Research,
1964; member, Board of Governors of the Smith Richardson
Foundation, Inc., 1988; member, Legal Advisory Board of the
National Legal Center for the Public Interest, 1988; member,
Board of Directors of the Institute for Educational Affairs,
1988; member, Development Board of The Federalist Society for
Law and Public Policy Studies, 1988; appointed by President
Reagan to the Permanent Committee for the Oliver Wendell
Holmes Devise, January 19, 1989. Honorary degrees: Doctor
of Laws, creighton University School of Law, 1975; Doctor of
Humane Letters, wilkes-Barre College, 1976; Doctor of Laws,
Notre Dame Law School, 1982; Juris Doctor, Honoris Causa,
Brooklyn Law school, 1984, Active duty, United States
Marine Corps Reserve, 1945-1946, 1950-1952. Author: The
Antitrust Paradox: A Policy at War with Itself (1978) i The
Tempting of America: The Political Seduction of the Law
(Nov. 1989).
i Horace V Busby and Associates
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MEMORANDUM FOR CLIENTS FROM HORACE W BUSBY
RE: Patriotism
It began nine days in advance when the Marines staged at the Corps's Washington
Barracks one of their often spine-tingling evening parades for President George
Bush. It won't end until the night of the Fourth when the last rocket is fired
in the traditional display on the Mall around the Washington Monument.
This is the capital city's high season, a time for an outpouring of a special
sort of spontaneous patriotism which has no parallel in other world capitals.
Over this year's long holiday weekend, hundreds of thousands of persons, mostly
in family groupings, will stream onto Washington's sidewalks and into its parks,
squares and ceremonial malls to celebrate the 213th Fourth of July. Nowhere else
in the nation is there an observance which quite compares with this.
I.
What happens in Washington is not merely the keeping of a national holiday.
Over the past decade, it has become a world holiday, one for all people.
The city's hotels and hostels swell with young visitors. Many, of course, are
Americans but there is a surprisingly large presence of youths from abroad, from
Europe, Asia, Australia, even some from Russia and the Bloc nations. For many of
them, the visit is, they say, fulfillment of a lifelong dream: they know about the
fireworks and the bands, but the ideas embodied in America's national day, like the
unique "Liberty" statue erected in Tiananmen, square, are a powerful magnet.
Some of the capital's veterans see it in these terms. So long as the United
States' relations with the world were primarily based on foreign aid programs,
there was none of this bonding; everything was government-to-government. But now
governments are out of the way. America has a new, more universal and far more
alluring meaning. It is the excitement of a freer world a-borning that attracts
the young to Washington to celebrate the Fourth of July.
11.
There is still another meaning not to be overlooked. In the early years of the
century, displays of patriotism were the ally of the native born. Bands, flags,
parades and oratory served to remind, subtly and not-so-subtly, the immigrants
from the Old World that this was not -- and, inferentially, would never be --
their country. Theodore Roosevelt played on a popular chord when he railed on
against "hyphenated Americans," even as the tide of aliens ran at the flood.
- 2 -
Now, the tables are turned. In the capital as in other cities, the Fourth of
July is the great holiday of the new ethnics. The Spanish in the District, the
many different Asians in the metropolitan suburbs dominate the day's observances.
Aged grandparents and new-born infants in tow, their families occupy the open
spaces, tossing frisbees, heading soccer balls, cooking favored native foods.
Music is everywhere from everywhere. It is the happiest of times.
Yet what one sees are scenes from the future, scenes from a nation -- and a
population - undergoing the greatest change since the nation's birth. It does
not have to be and probably it won't be in the end but much of America is, by way
of present reckoning, moving inexorably toward a kind of Third World status.
That is the great challenge of the third American century. It is one reason
that the exuberant state of American patriotism is so important.
111.
History affords no example of the successful governance of a nation so diverse
in its population as the United States. Before a central government can prevail,
in war or peace, it must achieve unity among its populace. The commonality of
heritage, culture and language affords a basis for such unity in nations such as
France and Japan. For this country, the appeal of patriotism is critical.
Twice, in the world wars of this century, government has resorted -- as a
matter of necessity - to the arts and crafts of propaganda to stir alive the
forces of patriotism. But that is an option less and less available. Those
Americans born in the 1920s and now well into their 60s accepted indoctrination
by their government compliantly, as those born since Pearl Harbor refuse to do.
There was, in those instances, the threat of defeat and subjugation by foreign
powers. But there are, for now, no threats of such magnitude.
There lies the test of this period. During the earlier years of the 1980s,
there was a burst of patriotism, but there were questions about its permanence.
President Reagan was artful in his evocations of patriotism but always in the
context of rallying the populace to "stand tall" against threats from abroad.
Since his departure - -- more precisely, since his red, white and blue campaign
of 1984 -- some have feared that the changes in the world's prospects might cause
that spirit to tail off, weakening a strength essential to American governance.
IV.
On the evidence, thus far, that is not happening. Patriotism and optimism
go hand in hand. With American optimism still running strong, patriotism seems
to grow as a strong force, stronger because it is welling up from the people
themselves rather than being urged upon them by government propaganda.
In that context, there has appeared this Fourth of July a curious sort of
conflict and challenge: the Supreme Court's decision that burning the flag is
a form of expression protected by the First Amendment to the Constitution.
Had such a decision come down when Americans now in their 60s were still in the
electoral majority, outrage would have been swift, angry and remorseless. Any
sanctioning of such desecration of a national symbol would have been unacceptable.
Now, though, new generations form the majority, generations conditioned by very
different life experiences. The reaction to come is far from predictable.
- 3 -
It may be prophetic that the flag-burning decision did not leap immediately
to the top of public concerns. At the moment, the Court's abortion decision is
securely in place as the supremely important issue of the times among both pro-
and anti- forces; both sides promise unprecedented public demonstrations. In
the values of those born since Pearl Harbor, the flag is not nearly so critical
a concern as abortion. The Chinese government's repression of demonstrators in
Beijing is having an effect as well: in an essentially conservative reaction,
that episode is cited repeatedly in man-on-the-street interviews by younger
Americans wary of giving government more power to repress individual expression.
There is quite a lot of doubt about how far a constitutional amendment will go.
By the flag-burning decision, as well as others in its recent series of
provocative findings on subjects from equal opportunity to porno phone services,
the Supreme Court's actions serve to remind that social and cultural issues are
still in the forefront of concerns of a greatly changed society. It has been
the party's inattentiveness to such concerns that has cost the Democrats heavily.
Older hands raise this consideration: after World War 11, southern states, such
as Georgia, acted to put down religious bigotry with laws prohibiting burning of
crosses. Would this court's new stance be unsympathetic to such laws now?
V.
Whatever else, the Fourth of July is a time when Washington focuses on the
nation's military. All branches of the services are kept busy providing color
guards or other units for the region's many patriotic observances. There are, as
well, fly-overs, precision drill teams and countless more performances in demand.
The quality and character of the personnel, men and women, are causes for
pride. Never in history has any other nation had officers and enlistees of such
high educational attainment. Government-paid college educations are, in fact, a
principal recruitment incentive, one reason neither Mr. Reagan nor Mr. Bush has
had to face the societally-troubling matter of reinstating the draft.
But change is enveloping the services. This is evident at reviews where the
women sometimes appear in pregnancy uniforms. It is less visible but no less a
new reality that the conference rooms in the Pentagon, as well as committee rooms
on Capitol Hill, are given over increasingly to sessions about reducing the ranks
to reflect the changing force requirements of the 1990s and beyond. There is an
old caution which infuses such discussions: it is part of the lore, political
and military, that hasty reduction of American forces after World War II was a
major influence contributing to the rise of Soviet aggressiveness. This time,
Washington decision-makers know infinitely more than in 1945 and 1946 about the
status of Soviet forces, are far better able to assess Soviet strength.
Now, unlike any other time before, there is no political pressure to shrink
the services and "bring the boys home." Quite the contrary, neither "the boys''
nor their families are anxious for their service to be ended. Further, as a
function of the new patriotism, military careers now enjoy high public prestige.
VI.
Now, as when Washington became the capital, the city's favorite arm of the
uniformed services is the Marine Corps. When John Adams and Thomas Jefferson
occupied the White House, Marines were the sole guard of the seat of the new
- 4
government. The base established by the Marines then in southeast Washington - --
so they might repel any British forces which sailed up the Anacostia River - -- is
still in operation; the residence of the Corps commandment there is the oldest
continuously-in-use public building in the capital.
The Marines are sometimes the despair of other services. More colorful,
showier, more often on display at the White House and other public functions, they
have a way of winning favor in the political community. Harry Truman, a field
artillery captain in World War I, never overcame a visceral dislike of Marines,
once denounced them for their skills at lobbying Congress. Otherwise, though, the
occupants of the White House tend to hold them high in favor. One reason was on
display at the start of the Fourth of July observance in Washington.
VII.
Some years ago, the Marines instituted at their Washington Barracks what is
regarded as the best show in the capital: a weekly "Evening Parade," complete with
the Marine Band, Drum and Bugle Corps, trumpeters atop the four story barracks, a
silent drill team and more. It is a military spectacular.
This year, the Marines staged a showing for the new Commander-in-Chief and a
few of his guests, as well as fellow officers and busloads of enlisted Marines and
their spouses. For many in attendance, it was a "chance to see the President," always
a sought-after privilege in the capital. For the handful of political types -- about
10 members of Congress and assistants from other White Houses back to the Eisenhower
years it was a chance to watch Mr. Bush at work without pressure.
In such a private situation, the 41st president is a man at ease, much more
comfortable in his role than several of his predecessors. Political families must
"work the crowd," moving among the guests at such an event to shake hands, engage
in brief cordial exchanges, disengage gracefully from any who want to make a speech.
The Bushes go their separate ways. Barbara Bush, forever upbeat, needs no one
to guide her through friendly faces. Her husband takes longer. Where Lyndon B.
Johnson went down crowd rows, seizing extended hands and throwing startled guests
forward with such force as to send some to the ground, George Bush seems to have
all the time in the world; he shakes hands easily, converses patiently and
sometimes shakes hands again before he moves on down the line.
Unlike virtually all other presidents, Mr. Bush does this without an aide at
his side cueing him on names, whispering bits of identification. As one Cabinet
officer present observed, "The President knows more people than anyone working for
him." On this occasion, he had at his side his eldest grandson, also a George.
After greeting guests himself, Mr. Bush introduced young George, offering the lad
an often fulsome explanation of who the individual was, how and where they had
first known each other and other details of interest to a 13-year-old. One
Congressman could not conceal his envy of this skill. "How does the man do it?"
he asked. "He even knew my district and I am a Democrat."
Such matters may seem small, but actually they are not. At this remarkable
season in world affairs, leaders in many other lands are having to learn under duress
what Mr. Bush knows instinctively from the traditions of his office: that Hitical
power is secure and stable in proportion to the respect
which the powerful show for the people they serve.
Horace W Busby Margaret Mayer
Publisher
Editor
THE BUSBY PAPERS are a service of Horace W Busby and Associates. Clients
receive a minimum of 32 Analysis, Perspective and Trend papers yearly. The annual
fee is $300. To begin service, or to make further inquiry, call 202-296-4810.
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
June 30, 1989
REMARKS BY THE PRESIDENT
FOR A CONSTITUTIONAL AMENDMENT
TO PROTECT THE FLAG
The Iwo Jima Memorial
Washington, D.C.
9:23 A.M. EDT
THE PRESIDENT: Senator Bob Dole, thank you, sir.
(Applause.) Thank you all very, very much. Once again, my thanks to
the magnificent Marine Band. Senator Dole, thank you, sir, and
Senator Dixon -- appreciate your coming all this way to join us on
thanks, and all the Members of the Senate and House that are here.
such short notice. To Congressmen Michel, and Montgomery, my sincere
Secretary of Defense and other distinguished civilians, the Defense
Department, and of course, I salute the members of the Joint Chiefs
who have joined us here. I might say I'm delighted to see Admiral
Crowe back from his very successful visit to the Soviet Union.
Welcome back to the U.S. of A., Bill. (Applause.)
And also our fellow citizens -- citizens of this, the
us. freest, most generous nation on God's Earth. Thank you for joining
And we stand today before a symbol of hope -- and of
triumph. All across America -- above farmhouses and statehouses,
freedom. schools and courts and capitals -- our flag is borne on the breeze of
And it reminds Americans how much they've been given --
and how much they have to give. Our flag represents freedom, and the
unity of our nation. And our flag flies in peace, thanks to the
sacrifices of so many Americans.
A woman in Florida recently shared with me a letter
written by her cousin, a young soldier named Wayne Thomas. On
December 16, 1966, he wrote, "Every time we go out on patrol, it gets
is when we walk back into camp and our flag is still flying high.
a little scarier. The only thing that gives us a sense of security
later, and was killed. He was 18 years old. He understood this
She told me that Wayne stepped on a land mine eleven days
give others the freedom that it represents.
banner of freedom -- and ultimately gave his life for the flag -- to
that she was a registered Democrat. And to me, that simply states
You know, she also pointed out to me, parenthetically,
that patriotism is not a partisan issue -- it's not a political issue
partisanship. -- (applause) -- our purpose today transcends politics and
And we feel in our hearts -- and know from experience --
that the surest way to preserve liberty is to protect the spirit that
sustains it. And this flag sustains that spirit. And it's one of
defended, it is defamed.
our most powerful ideas. And like all powerful ideas, if it is not
To the touch, this flag is merely fabric. But to the
heart, the flag represents and reflects the fabric of our nation --
our dreams, our destiny -- our very fiber as a people.
MORE
- 2 -
and very symbol, with its stripes and stars, that has it
nation, is this we do not question the right of men to speak freely. For
And when we consider the importance of the Colors to this
nurtured those precious rights -- for those who've championed guaranteed the
abroad. cause of civil rights here at home, to those who fought for democracy
Constitution -- that so many have sacrificed.
is in defense of that right -- and the others enshrined in our
Free speech is a right that is dear and close to all. It
ourselves how many have died following the order to "Save the
But before we accept dishonor to our flag, we must ask
Colors!" We must ask how many have fought for the ideals it
represents. And we must honor those who have been handed the folded
flag from the casket at Arlington.
our backs on those who fought to win it for us. We can't forget the
If the debate here is about liberty, then we cannot turn
importance of the flag to the ideals of liberty and honor and
freedom. (Applause.) To burn the flag, to dishonor it, is simply wrong.
photograph immortalized in bronze.
our flag -- the one you see behind me -- Joe Rosenthal's stunning
And today, we remember one of the most vivid images of
these men and of how they honor the living, and the dead. Remember
As you view this memorial, think of its flag, and of
others of their lives. Fighting bravely -- daring greatly -- so that
their heroism, and their sacrifice -- giving of themselves, and
freedom could survive.
in the story of America. And even now, it humbles us. Inspires
The Battle of Iwo Jima wrote one of the greatest chapters
Reminds it us of how Henry Ward Beecher said: "A thoughtful mind, when us.
itself." sees a nation's flag, sees not the flag only, but the nation
caves, and volcanic rubble. And it cost our Armed Forces almost
It was fought in early 1945 -- fought on eight square miles of sand,
The nation itself was ennobled by the Battle of Iwo Jima.
landing force. But -- like Tarawa and Guadalcanal, and the
7,000 killed, and more than 19,000 wounded -- almost a third of the
Philippines before it had to be won. For victory at Iwo would be
yet another step towards bringing that ghastly war to a close.
torrent of shells -- pushing their way up that extinct volcano -- and
These Marines wrote a profile in courage. Enduring a
flew five men behind me raised a piece of pipe upright, and from one end
they stormed Mount Suribachi. And when they reached the top, the
a flag. And in the most famous image of World War II, a
photograph was taken of these men. And that flag. And what that
flag embodies is too sacred to be abused. (Applause.)
equality have been an irresistible force in motivating leaders like
opinion in the recent Supreme Court case, "The ideas of liberty and
As Justice Stevens stated so eloquently in his dissenting
like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers
fought at Bataan, and the soldiers who scaled the bluff ot Omaha
Nathan Hale and Booker T. Washington, the Philippine Scouts who
demonstrates Beach. If those ideas are worth fighting for -- and our history
flag that uniquely symbolizes their power is not itself worthy of
that they are -- it cannot be true, he says, that the
protection (Applause.) from unnecessary desecration." The Justice is right.
Constitutional leaders of the Congress with us in this audience who have proposed
And today, I am grateful to the leaders here and the
Amendment to protect the flag. Its language is stark, a
MORE
- 3 -
and it's simple, and to the point: "The Congress and the States
the shall have power to prohibit the physical desecration of the Flag of
United States." Simple, and to the point. This Amendment
preserves the widest conceivable range of options for free
nation. expression. It applies only to the flag -- the unique symbol of our
Montgomery take -- I know that you have already taken the lead, but please
Senator Dole, Senator Dixon, Congressmen Michel, and
forward. With the help of you Members of the Senate and House here
the lead, working with others here today in moving this bill
couldn't be with us today -- I am confident that we will succeed.
today -- and with the help of the many more of your colleagues who
I've seen predictions that this will take a long time. It need not.
one thing -- our flag will not be desecrated. (Applause.)
It is simple, to the point, direct, and it addresses itself to only
Moreno. Born in Argentina -- now a naturalized citizen -- he likes
Let me close with a letter from a man named Augusto
to in say that he's more proud to be an American than most of those born
he likes to say, anyway. He's very serious when he states, "I
this country. I'm not sure he's right about that, but that's what
Vietnam. I am now a disabled veteran. I am sure that there is not
while fighting for democracy with the United States Marine Corps in
proud to say that my blood is represented on our flag. I was wounded am
not so fortunate to return as you and I."
one day that goes by without you seeing the faces of those who were
the flag now, as when we were in uniform -- if not for then for
And he says, "We must continue our struggle to protect
for those fallen veterans. We've been entrusted by those who us, have fought
desecrate the only symbol of freedom in the world."
freedom before us to protect our flag. I cannot allow anyone to
veteran -- but Semper Fi anyway." (Laughter.) Those darn Marines, Navy
And he ends saying, "sir, I realize that you're a
I'll tell you.
we will defend the flag of the United States of America.
of the fallen -- for the men behind the guns -- for every American sake --
Well, Mr. Moreno, you have our word on it -- for the
States of America.
Than you. God bless this flag. And God bless the United
END
9:35 A.M. EDT
THE WHITE HOUSE
washington
7/10/89
Kristin:
DD just got this memo
Friday afternoon before
he left. He says there's
not much we can do on it
immediately.
But, that you should
assign somone to be working
on an op ed while they're
gone to have ready when
the issue come up again
in a few weeks.
All he said was an
op ed on the flag.
Thanks and please
call if you have questions.
Sara M.
sm
THE WHITE HOUSE
WASHINGTON
DATE:
7/7/89
NOTE FOR: THE CHIEF OF STAFF
DAVID DEMAREST
The President has reviewed the attached, and it is forwarded to
you for your:
information
action
Thank you.
James W. Cicconi
Assistant to the President
and Deputy to the Chief of Staff
(x-2702)
cc: C. Boyden Gray - FYI
Marlin Fitzwater - FYI
THE WHITE HOUSE
WASHINGTON
DATE:
7-6-89
FROM THE PRESIDENT
To:
JOhn Sununu
Please ask Demarest or soemone to get a goo
op-ed piece in for the Post 8 Sunday
edition. these
quotes from Warren and black are very helpf
Bill Rogers?
Len Garment??
soemone with standing mongst the elite.
gb .
cc: Boyden Gray
THE WHITE HOUSE
WASHINGTON
July 6, 1989
NOTE FOR THE PRESIDENT
FROM:
C. BOYDEN GRAY can
As indicated on the phone, attached is today's Op-Ed piece,
together with Justice Fortas's dissent in the Street V. New
York case referred to in the editorial.
Although the Street case involved flag burning, the smartest
and most liberal law clerk (who clerked for Justice Harlan)
wrote a brilliant opinion that turned the case into one that
did not involve flag burning, in order to avoid (successfully)
a decision on the issue. Nevertheless, there were four
dissenters, including the Chief Justice and Justice Fortas,
who said the case clearly involved flag burning, which could
in turn be punished by the government.
THE WALL STREET RNAL THURSDAY. JULY in. 1989
On the Flag,
The Justices Make
Dukakis's Mistake
By L. GORDON CROVITZ
One week after Supreme Court justices
ruled that burning the flag doesn amount
Provocative speech - or provocative
Ironically. the justices may
to tighting words. a scrap outside the
symbolic speech" thus does not get ab-
derstood how people would
Arkansas state capitol proved them wrong.
solute First Amendment protection. "Such
burning of the flag partly
A fringe candidate for governor. Robert
itterances are no essential part of any ex-
are SO few flag burners these
McIntosh. was set to burn a flag until a
position of ideas. and are of such slight so-
nation was different in the
group of onlookers rushed him. Auto shop
Tal value as a step to truth that any bene-
rights and antiwar demonstrations. when
wher Brett Keathley threw a punch at
tit that may be derived from them is
more liberal court heard another
Mr. McIntosh. which gave state police the
hearly outweighed by the social interest in
volving flag burning. In that case. Street
excuse (i) arrest both for disorderly con-
order and morality. the 1942 case held.
New York. the flag burner was
duct. If it causes me to be arrested. I'll
But Justice Brennan wrote that It would
do this every time.' Mr. Keathley said.
be inreasonable to think anyone would be
cause the court held that he was prose
cuted for his words. not his actions. B
Similar incidents occurred around the
incited by Gregory Lee Johnson's burning
the justices who thought he was convicted
country on July 4. A melee following a left-
it the flag at the 1984 Republican conven-
for burning the flag dissented. saying
wing group's effort to burn the flag closed
tion. He said that burning the flag does not
was not constitutionally protected.
New York's Washington Square Park. Pro-
fall within that small class of fighting
abortion activists in Minneapolis were at-
words that are likely to provoke the aver-
Among the justices who thought laws
could protect the flag was liberal Chief
tacked after burning a flag. Veterans in Al-
age person to retaliation. and thereby
Justice Earl Warren. He wrote that "the
bany repeatedly knocked the lighter away
cause a breach of the peace
states and federal government do have the
from a would-be flag burner.
The Brennan opinion assumed No rea-
power to protect the flag from acts of dese-
The broad public outrage since the
sonable onlooker would have regarded
cration and disgrace. Likewise. Justice
court ruling in Texas U. Johnson may
Johnson's generalized expression of dissat-
Hugo Black said that "it passes my belief
mean the justices so miscalculated how
staction with the policies of the federal
that anything in the federal Constitution
Americans react that if they get another
government as a direct personal insult or
bars a state from making the deliberate
flag-burning case they might come out the
an invitation to exchange fisticuffs." Actu-
burning of the American flag an offense.
other way. This is not because justices are
ally. one reason no one tried to attack Mr.
supposed to follow the polls or pander to
Johnson may have been that he was sur-
Interestingly, antiwar activist Tom Hay-
den. now a California legislator. last week
the majority. Instead, since their approach
rounded by police officers, who quickly ar
voted for a constitutional amendment
in such cases is to balance free speech
rested him when he burned the flag.
against flag burning because such actions
with the likelihood of inciting a breach of
Chief Justice William Rehnquist's dis-
incite violence-and he should know.
the peace, the court's assumption that the
sent pointed out that states have upheld
There is a problem with a legal doctrine
average American wouldn't be outraged by
laws against burning the flag because such
someone torching Old Glory means the jus-
desecration is so inherently obnoxious that
that depends on what nine cloistered JUST
tices erred as a matter of law.
it will naturally lead to a breach of the
tices think makes the average American
righting mad. The justices might have
Justice William Brennan's majority
peace. He argued that flag burning is the
been wiser to give more credence to the is
pinion acknowledged that the fighting
equivalent of an inarticulate grunt or roar
that. it seems fair to say, is most likely to
state laws and federal statutes that pr
words doctrine means that the First
hibit desecration of the flag. laws written
Amendment does not protect speech or
be indulged in not to express any particu-
by legislators who think burning the the
symbolic speech if the expression is di-
lar idea, but to antagonize others."
amounts to fighting words. Whether
rected to inciting or producing imminent
Why did the majority of justices in the
lawless action and is likely to incite or pro-
flag case. including conservatives Antonin
a constitutional amendment is the proper
duce such action." He was bound by the
Scalia and Anthony Kennedy. misunder-
response, the fact of public outrage over
the flag decision is itself good evidence
unanimous Supreme Court opinion in 1942
stand how the "average American" views
that upheld the conviction of a demonstra-
the flag? It may be the same miscaluation
that the justices got the law wrong.
tor who had called a local marshal a "God
Michael Dukakis made when he underesti-
damned racketeer" and a "damned fas-
mated the Pledge of Allegiance. Or per-,
Mr. Crovitz is assistant editor
cist.) Chaplinsky U. New Hampshire said
haps the court confused the symbol with
Journal's editorial page.
that there's no constitutional protection for
what it symbolizes. In writing that the flag
the lewd and obscene, the profane. the li-
deserves no protection from desecration,
belous. and the insulting or fighting
Justice Brennan noted that the Founders
words-those which by their very utter-
were not known for their reverence for
ance inflict injury or tend to incite an im-
the Union Jack." This misses the point.
mediate breach of the peace.
The Texas law outlawed the burning of the
U.S. flag. not the Hammer and Sickle.
STREET v. NEW YORK.
FORTAB, J., dissenting.
FORTAR, J., dissenting.
304 U.S.
FORTAB, J., dissenting.
States Hag for, purposes of advertising. Halter V. Ne-
The Court is obviously wrong in reversing the judg-
necessarily be defeated by a claim that they conflicted
braska, 205 U. S. 34 (1907). Statutes prescribe how the
ment below because it believes that Street was unconsti-
with the rights of the owner of the regulated property.
flag may be displayed; how it may lawfully be disposed
tutionally convicted for speaking. Reversal can follow
See, e. V., Village of Euclid V. Ambler Realty Co., 272
U.S. 365 (1926); Berman V. Parker. 348 U.S. 26 (1954).
of; when, how, and for what purposes it may and may
only if the Court reaches the conviction for flag burning
not be used. See, e. g., 4 U. S. C. $ 3; 56 Stat. 377. c. 435,
and finds that conviction, as well as the assumed con-
If a state statute provided that it is a misdemeanor
36 U. S. C. §§ 172 177. ^ person may "own" a Aag. but
viction for speech, to be violative of the First Amend-
to burn one's shirt or trousers or shoes on the public
ownership is subject to special burdens and responsibili-
ment.' For myself, without the benefit of the majority's
thoroughfare, it could hardly be asserted that the citizen's
ties. ^ Ang may be property, in a sense; but it is
thinking if it were to find flag burning protected by the
constitutional right is violated. If the arsonist asserted
property burdened with peculiar obligations and restric-
First Amendment, I would sustain such a conviction.
that he was burning his shirt or trousers or shoes as a
tions. Certainly, as Halter V. Nebraska, supra, held,
I must dissent.
protest against the Government's fiscal policies, for ex-
these special conditions are not per Me' arbitrary or beyond
ample, it is hardly possible that his claim to First Amend-
ment shelter would prevail against the State's claim of
governmental power under our Constitution.
MH. JUSTICE FORTAS, dissenting.
One may not justify burning a house, even if it
I agree with the dissenting opinion filed by THE CHIEF
a right to avert danger to the public and to avoid obstrue-
is his own, on the ground, however sincere, that he
JUSTICE, but I believe that it is necessary briefly to set
tion to traffic as a result of the fire. This is because
does SO as H protest. One may not justify breaking the
forth the reasons why the States and the Federal Govern-
action, even if clearly for serious protest purposes, is not
windows of A government building on that basis. Pro-
ment have the power to protect the flag from acts of
entitled to the pervasive protection that is given to
test does not exonerate lawlessness. And the prohibi-
desecration committed in public.
speech alone. See Cantwell V. Connecticut, 310 U. S.
tion against flag burning on the public thoroughfare
If the national flag were nothing more than a chattel,
296. 303-304 (1940). It may be subjected to reasonable
being valid, the misdemennor is not excused merely
subject only to the rules governing the use of private
regulation that appropriately takes into account the
because it is an act of Hamboyant protest.
personalty, its use would nevertheless be subject to cer-
competing interests involved.
tain types of state regulation. For example, regulations
The test that is applicable in every case where conduct
concerning the use of chattels which are reasonably de-
is restricted or prohibited is whether the regulation or
signed to avoid danger to life or property, or impinge-
prohibition is reasonable, due account being taken of
ment upon the rights of others to the quiet use of their
the paramountcy of First Amendment values. If, as
property and of public facilities, would unquestionably
I submit, it is permissible to prohibit the burning of
be a valid exercise of police power. They would not
personal property on the public sidewalk, there is no
basis for applying a different rule to flag burning. And
, Arguably, under today's decision any conviction for Hag burning
the fact that the law is violated for purposes of protest
where the defendant's words are critical to proving intent or some
does not immunize the violator. United States V.
other element of the crime would be invalid since the conviction
O'Brien, 391 U. S. 367 (1968); see Giboney V. Empire
would be based in part on speech. The Court disclaims this result,
but without explaining why it would not reverse a conviction for
Storage & Ice Co., 336 U. S. 490 (1949).
burning where words spoken at the time are necessarily used to
Beyond this. however, the flag is a special kind of
prove a care and yet reverse burning convictions on precisely the
personalty. Its use is traditionally and universally sub-
same evidence simply because on that evidence the defendant might
jeet to special rules and regulation. As early AS 1907,
also have been convicted for speaking. The Court's seemingly
this Court affirmed the constitutionality of a state statute
narrow holding may be of potentially broader application, particularly
making it a crime to use a representation of the United
in view of Thomas V. Collins as now rewritten by the Court.
( (Grant))
July 19, 1989
Draft one
A:flagburn
PROPOSED ARTICLE ON CONSTITUTIONAL AMENDMENT
PROHIBITING FLAG-BURNING
TO BE AUTHORED BY AN ADMINISTRATION SURROGATE
Shocking nature of this decision. Quote Warren and Black, Abe
Fortas. All strong protectors of first amendment freedoms.
Tell of Charles Fried's reversal before the committee,
contradicting his own written testimony because statute position
untenable upon reflection.
Statute vs. amendment:
The average American: outraged, wants flagburning made illegal.
Most Americans believe in 1st Amendment but to what extent?
Bork on Johnson not prosecuted for chanting, but for flagburning.
Hundred other ways to express ideas about America than to burn a
flag. Not outlawing opinions, only certain manner of expressing
them. Use examples from Bork bottom of page 3 to illustrate
use
"offensive and disagreeable," and slip opinion on bulletin boards
on Washington Monument. "Simply putting out of bounds a few
means of expression in no way threatens the American system of
freedom of speech." Bork. Most Americans find flag burning
"offensive and disagreeable" because 48 states and federal gov't
have statutes outlawing flag desecration.
Barr top of page 3 on why a statute will not fix the problem
Texas vs. Johnson summary:
Flag burning as expression
Governmental interest in suppression of expression:
a. preventing breaches of the peace
cannot assume breaches/ not fighting words
b. preserve symbol of national unity
this is directly related to expression, therefore "most
exacting scrutiny"
designation of symbols questioned/slippery slope by
Bork p.6
no separate juridical category for flag
Anti-Statute
Rm 117
Kastermeir - Doyou believe it is a Mesonably close
question whither estatute would work Cie const)
fried: "No, not Milly, Bill Barr made a very
devasteding attack I don't know what
the answers are [toth hypos raised by Bill]
This was a very power hal agunent
I wasn't sure before I heard Bills
2930
testimony
Document No.
WHITE HOUSE STAFFING MEMORANDUM
7/15/89
MONDAY 7/17 8:00 AM
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
DEPARTMENT OF JUSTICE TESTIMONY ON PROPOSED FLAG AMENDMENT
SUBJECT:
ACTION FYI
ACTION FY
VICE PRESIDENT
MCCLURE
SUNUNU
NEWMAN
SCOWCROFT
PORTER
DARMAN
STUDDERT
BATES
UNTERMEYER
BREEDEN
CARD
CICCONI
DEMAREST
FITZWATER
GRAY
HAGIN
REMARKS:
Please provide comments/recommendations directly to Counsel's
Office, (x2632) with an info copy to my office. Thank you.
COMMENTS DUE BY 8:00 AM, MONDAY 7/17.
RESPONSE:
,
James W. Cicceni
Assistant to the President
and Deputy to the Chief of Staff
Ext. 2702
m/c
UNCLAS
CLASSIFICATION
FYI
5
PAGES
MODE
CIRCLE ONE BELOW
196
OTG 1518352
SECURE FAX
IMMEDIATE
ADMIN FAX ,
RELEASER y Dayle
PRIORITY
RECORD #
ROUTINE
FROM/LOCATION
FRAN WESSEL/THE WHITE HOUSE
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TO/LOCATION/TIME OF RECEIPT
JAMES W. CICCONI/PARIS
1.
CHIEF OF STAFF/PARIS
2.
ANDY CARD/PARIS
$
DAVID DEMAREST/PARIS
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MARLIN FITZWATER/PARIS
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ROGER PORTER/PARIS
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1.
INFORMATION ADDEES/LOCATION/TIME OF RECEIPT
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SPECIAL INSTRUCTIONS/REMARKS:
The attached has been staffed to your office in Washington.
UNCLAS
CLASSIFICATION
WHCA FORM a. 13 OCTOBER $4
THE WHITE HOUSE
WASHINGTON
1003
July 15, 1989
13
1:30
MEMORANDUM FOR JAMES W. CICCONI
FROM:
C. BOYDEN GRAY CBG/TPS
SUBJECT:
Department of Justice Testimony on Proposed Flag
Amendment
Attached for your information is a copy of a memorandum I
received from William P. Barr, Assistant Attorney General,
Office of Legal Counsel. It outlines his proposed testimony
the Subcommittee on Civil and Constitutional Rights of the
House however, he must submit the testimony on Monday, July 17
to Judiciary Committee on Wednesday, July 19 at 9:30 a.m.; at
9:30 a.m.
Please staff as appropriate and get back to John Schmitz or
me with any comments before Monday.
U.S. Department of Justice
Office of Legal Counsel
Office of the
Washington DC 20530
Assistant Attorney General
July 15, 1989
MEMORANDUM TO C. BOYDEN GRAY
Counsel to the President
Re: Testimony on Proposed Flag Amendment
This memorandum is to provide you with an overview of my
prepared testimony on the proposed constitutional amendment to
prohibit flag desecration. I am scheduled to testify on Wednesday,
July 19, before the Subcommittee on Civil and Constitutional Rights
of the House Judiciary Committee. Especially in light of the
political sensitivity of this issue, I would welcome any thoughts
you have.
I will begin the testimony by observing that the Flag is a
unique symbol of our Nation and that it is unquestionably worthy of
protection. The people of this country overwhelmingly agree that
the Flag must be protected. They were understandably outraged to
be told that the Flag could be burned, and the President shares
that sense of violation. The question at hand is simply how to
provide the needed protection.
I will point out that two alternative methods of protecting
the Flag have been suggested: (1) a neutral statute, and (2) a
constitutional amendment that would empower Congress and the States
to prohibit those acts they believe desecrate the Flag. I will
explain, however, that our analysis convinces us that no statute,
however drafted, can prevent the type of intentional flag
desecration that outrages the citizens of this Nation, and that we
are convinced that a constitutional amendment is necessary. We do
not believe this to be an especially close question. If we had
concluded that a statute could provide the desired protection, we
would have pursued that option.
Turning to the proposed amendment, I will emphasize that the
amendment endorsed by the President does not itself prohibit flag
desecration; it merely empowers Congress and the States to prohibit
legislatively the physical desecration of the Flag, and
establishes the limits within which Congress and the States may
legislate. within these broad limits, Congress and the States will
be permitted and obliged to draw lines. For example, the
legislatures will have to determine how they wish to define
"Flag" and "physical desecration" of the Flag. Additionally, they
will have to decide whether to make intent a necessary element of a
Flag desecration offense. I will describe the general nature of
the decision that will have to be made as to each of these three
issues.
In defining "Flag," we believe there are three reasonable
lines that could be drawn. First, "Flag" could be defined narrowly
to mean only the official, 50-star cloth Flag. Under this
definition, however, individuals could simply circumvent any
prohibition by burning a flag that is slightly different in an
undetectable way from the actual Flag. Thus, we would not be
prohibiting acts that are just as offensive to objective onlookers
as desecrating the Flag itself. significantly, Congress recognized
this when it enacted the existing federal Flag desecration statute,
and did not limit the term "Flag" to the actual Flag of the United
States.
A second option would be to define "Flag" as anything that an
average person would perceive to be the Flag; thus, "Flag" could
include historic versions of the Flag (1.e., a 13-star version) or
any flag with a slight variation (1.e., a flag with a stripe
missing). Under this option, the protected object would still have
to be an actual flag; destruction of a poster, or a painting of the
Flag, or painting a picture of the Flag with a swastika on it could
not be prohibited because an objective observer would not mistake
the object as an actual Flag. The existing federal statute extends
beyond this definition as well.
The third possible definition of "Flag," and the one that is
used in the existing federal statute, would include any flag,
portion of a flag, or any picture or representation of a Flag.
This definition would allow the legislatures to protect depictions
of the Flag, such as posters, murals, pictures, buttons, and any
other representation of the Flag. This definition is reasonable in
light of the government's interest in preserving the Flag's
symbolic value. It recognizes that the desecration of
representations of the Flag can damage that interest as much as
desecration of the Flag itself. Senator Biden's statute, as
currently worded, would define the Flag in this manner.
I will point out that the amendment would permit the
legislatures to define "Flag" as broadly as does the existing
federal statute, but I will suggest that they not define it any
narrower than in the second definition.
with respect to the phrase "physical desecration," I will
emphasize that some physical contact with the Flag is essential;
the legislatures would not be permitted to-prohibit mere words
directed at the Flag, regardless of their offensiveness. The issue
will likely be whether the legislatures could prohibit display of
the Flag in surroundings they believe unsuitable for the Flag
(i.e., inside a massage parlor), or whether they could prohibit
only physical acts of abuse upon the Flag itself. I will testify
that we understand the amendment to empower the legislatures to
prohibit only actual physical acts of abuse upon the Flag, which
could include the physical positioning of the Flag itself (i.e., on
the floor), and that they could not prohibit an otherwise customary
display merely because of a belief that the particular surroundings
do not befit the Flag. We do not believe the Government should be
in the position of making value judgments about whether it is
demeaning for the Flag to be displayed in particular settings and
by particular persons. As long as the Flag is displayed in a
customary manner, and not physically mistreated, the amendment
would not authorize punishment.
The third issue relates to the actor's state of mind. Both
the proposed statute and the amendment would prohibit only
voluntary actions: unintended acts could not be punished. For
example, one could not be punished for accidentally dropping the
Flag or inadvertently stepping on the Flag. The more difficult
issue is whether the actor must intend to be contemptuous toward
the Flag. We believe Congress and the States would also be free to
decide this issue. We suspect that they will usually require that
the actor intend to cast contempt. Because the overwhelming number
of physical acts of concern to us are intended to express contempt
for the Flag, we would not be especially troubled were they to
choose to prohibit only those acts that were intended to cast
contempt. Nevertheless, the legislatures may choose to prohibit
some acts without regard to the actor's intent.
We think that offering the legislatures the option of
prohibiting only intentionally contemptuous, physical desecration
represents a significant advantage over the statute proposed by
Senator Biden and others. Their statute would require that the
Government prohibit acts without regard to whether they cast
contempt. Thus, a child who innocently steps on a flag, a person
who crumbles a Fourth of July flag-decorated paper cup, and a
veteran who burns an old Flag out of reverence and respect would
all presumably be prosecutable under Senator Biden's statute.
Indeed, this absurdity in the statute is further evidence of the
reasonableness of a constitutional amendment.
In sum, the Michel-Montgomery amendment confers substantial
discretion on Congress and the States to determine precisely the
acts that are to be prohibited. The amendment allows legislators
to draw reasonable lines and to prohibit only those acts they wish
to prohibit. The statute proposed would prohibit numerous acts
that reasonable persons would not wish to prohibit, and ultimately
would not constitutionally permit prohibition of the very acts that
we are attempting to prohibit.
WBan
William P. Barr
Assistant Attorney General
Office of Legal Counsel
TAKING ISSUE
The Great
BY STUART TAYLOR JR.
Communicator's
Final Word
Smarm-Splattered Banner
Leading Democrats and their favorite constitutional
shadow of freedom. The test of its substance is the right to
T
wo days before Ronald Reagan's
scholar have come up with an ingenious solution to the great
differ as to things that touch the heart of the existing order.
White House lease ran out. he
flag-desecration crisis.
The legalistic calculation behind the Democratic push for
signed an extraordinary executive
To get around the Supreme Court's invalidation of laws
a flag-protection statute is that one or more of the five jus-
order that has thus far gone largely un-
aimed at flag-burning and flag-trampling political protest-
tices who voted to strike down the Texas law might grasp at
noticed. It vested private citizen Reagan.
ers, they want to make it a crime for. say, a husband and
an opportunity to uphold a differently drafted flag-
wife to trample Old Glory in the sacred precincts of the
desecration statute.
in essence. with the lifetime power to
marital bedroom.
prevent disclosure of "privileged" papers
The calculation is plausible; anyone who has observed
generated by or for him during his presi-
Far-fetched? Let Sen. Joseph Biden Jr. of Delaware,
the contortions Justice Harry Blackmun has gone through in
dential tenure. Unless the order is nullified
Gov. Mario Cuomo of New
the past on flag desecration
by President George Bush, Reagan may be
York, and Harvard Law Profes-
would be foolish to lay odds
able to suppress whatever documents he
sor Laurence Tribe explain. as
against it.
regards as deleterious to his interests and
Tribe and others will do at three
Labored distinctions are not
those of his administration.
hearings this week before a
without precedent in symbolic-
For sheer audacity. Executive Order
House subcommittee. As these
speech cases. For example,
12667-approved by Reagan on Jan. 18
Democrats read it. the June 21
United States V. O'Brien, in
but not published in the Federal Register
flag-burning decision, Texas V.
1968, upheld punishment of
until Jan. 23 (after his return to Califor-
Johnson, bars the government
anti-war protesters for burning
nia)-has few parallels in the annals of
only from singling out for pun-
their draft cards on the ground
governmental flimflam.
ishment those who publicly mis-
PAUL KOLSTI
that the law against destroying
To be sure, departing presidents have
treat the flag as a way of ex-
the cards was not necessarily
often secured more far-reaching control of
pressing their contempt for it.
aimed at protesters but at helping
their records by quietly carting them off in
No problem, say Biden,
the Selective Service to keep
the self-serving belief that "custom" en-
Cuomo, Tribe, and company. No need to amend the Con-
track of potential draftees.
titled them to personal ownership of their
stitution; just make it a crime to mistreat a flag in private as
But the distinction the Democrats are trying to sell with
files. Herbert Brownell. former U.S. at-
well as in public, regardless of whether any political mes-
their new flag-protection statute is both spurious and dan-
torney general who headed a commission
sage is intended. Then throw the books at all flag des-
gerous. It is spurious because one has to stretch to imagine a
that laid the groundwork for the Presi-
ecraters, political protesters as well as
as well as
hypothetical case in which the state would want to punish,
dential Records Act of 1978. has attrib-
-well, as well as all the others, if any.
or would even find out about, flag desecration by anyone
uted the custom to a "legal fiction. Since
To make it constitutional, we will have to prosecute lazy
other than a political protester. It is dangerous because once
the hauling away of presidential papers
scoutmasters who let the Stars and Stripes drag in the dirt
legislatures get into the business of designating symbols too
was barred by the 1978 statute, Reagan's
and people who maliciously mistreat their own flags in the
sacred to be desecrated and modes of political dissent too
order is, in effect. a means of prolonging
privacy of their homes for the sheer sadistic pleasure of it.
offensive to be tolerated, everyone will want to get in on the
de facto secrecy powers he enjoyed during
Biden and company will go to the ramparts to defend
act.
his Oval Office years.
your rights to use contraceptives and read obscene books at
Even a scholar of Tribe's brilliance has to strain to cobble
home, but don't let them catch you abusing a flag there.
together a constitutional argument in support of his view
Artful Abracadabra
'Statutory Choo-Choo'
that. as he said in a July 3 column in The New York Times,
For all its artful abracadabra. the un-
"properly understood, the Court's decision upheld no right
precedented order has the telltale earmarks
Of course, the Democrats' word tricks are driven not by
to desecrate the flag, even in political protest, but merely
of a stratagem devised to undercut key
constitutional analysis but by raw political panic. They see a
required that Government protection of the flag be separated
provisions of the records act. Section 2203
freight train barreling down the track at them-the proposed
from Government suppression of detested views."
of that law required Reagan to relinquish
constitutional amendment to ban flag-burning-and are
Tribe had a very different perspective last year, when he
his official files to the National Archives
stoking up their own little statutory choo-choo to outrace it.
issued the second edition of his treatise American Constitu-
They saw how the voters lapped up George Bush's smarmy
tional Law. He wrote then that protection of the flag as
exploitation of the flag-salute issue in last year's election,
symbol could not be separated from suppression of the
and they don't want to be outdone in patriotic posturing this
desecrater's views, because the symbol is degraded "only
time.
when such conduct is perceived by others, and only when
This Democratic tactic is not, unfortunately, the most
the conduct is interpreted in a certain way."
grotesque exercise in cynicism. gutlessness. and trivializa-
Tribe (unlike Biden and Cuomo) stops short of saying a
CURIER
tion of the Constitution on display in the Great Flag
flag-protection statute is a good idea in any sense other than
Desecration Flap of 1989. That prize must go to President
being a less bad idea than a constitutional amendment. But
Bush's campaign to ban flag desecration by amending the
he now says such a statute would be upheld, citing a couple
Constitution.
of oblique footnotes and scraps of text in Justice William
If there were political advantage in it. Bush would holler
Brennan Jr. majority opinion and past decisions including
for an amendment to punish Salman Rushdie's desecration
O'Brien.
of Mohammed or Baseball Commissioner A. Bartlett Gia-
It seems more plausible, however, to take Brennan at
matti's desecration of Pete Rose.
face value when he says that the government may not
It is nothing new to see Bush and his Republican herd
"criminally punish a person for burning a flag as a means of
pandering to public passions by trivializing the Constitu-
political protest.'
tion. What is especially disheartening is to see our public
Tribe likens a hypothetical statute penalizing those who
and Records Administration at the end of
discourse in such a sorry state that the opposition party, and
mistreat flags to the valid laws penalizing desecration of
his tenure. Section 2205 authorizes con-
eminent constitutionalists like Tribe, are clamoring for a
grave sites and destruction of historical artifacts.
gressional access to his papers. following
civil blasphemy statute instead of standing up for the First
But destroying one of the millions of mass-produced,
their acquisition by the National Archives.
Amendment.
fungible flags is not at all like destroying a unique physical
whenever the information they contain is
One can understand why, for reasons of personal taste as
object, especially one that is somebody else's property. As
``needed for the conduct of [legislative]
well as political self-preservation. the Democrats want to
Brennan noted, "[N]othing in our opinion should be taken
business."
align themselves with the many Americans who feel pride
to suggest that one is free to steal a flag so long as one later
These provisions stemmed from Con-
and reverence for the flag rather than with ragtag radicals
uses it to communicate an idea."
gress' conviction that personal control of
who show their contempt for it. And one can appreciate
Tribe also notes that "torturing a little animal," even in
White House documents by former presi-
their desperate search for an alternative to the desecration of
private, could properly be made a crime.
dents is incompatible with bedrock prin-
the Bill of Rights being prepared by Bush and others.
Well, sure. But torturing a piece of cloth? Only in voo-
ciples of constitutional government. (Sig-
Civil Blasphemy
doo constitutional law. Nothing anyone can do to a flag, in
nificantly, Richard Nixon's post-presiden-
public or in private, can destroy or damage the flag, which
tial effort to obtain control over his tapes
But can those bent on throwing raw meat to Americans
is an idea and, as such, immortal.
and papers was barred by Congress in the
aroused over the occasional flag-burning see no parallel to
If Congress really wants to armor-plate a flag-desecration
Presidential Recordings and Materials
the mass hysteria and bloodlust that swept the Moslem
ban, it could declare that every American flag in creation is
Preservation Act of 1974. which nullified
world after the publication of Rushdie's allegedly blas-
the property of the United States government, held in trust
a Justice Department opinion supporting
phemous The Satanic Verses?
by the possessor. Then damaging a flag would be simple
his effort. The anonymous author of that
And has everyone forgotten what Justice Robert Jackson
vandalism of government property. Seem ridiculous? Look
opinion was a newly appointed assistant
wrote for the Court at the height of World War II, when
how far we've come already.
attorney general named Antonin Scalia.)
salute-the-flag mania stalked Jehovah's Witness school-
Since a primary object of Executive
children who refused to worship what they considered a
Stuart Taylor Jr. is a senior writer with American Lawyer
Order 12667 is to undercut §§ 2203 and
graven image? "Freedom to differ is not limited to things
Media L.P. and The American Lawyer magazine. "Taking
2205. the omission of any reference to
that do not matter much," he said. "That would be a mere
Issue" appears every other week in Legal Times.
SEE FINAL WORD, PAGE 14
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2ND STORY of Level 1 printed in FULL format.
Copyright (c) 1989 The New York Times Company;
The New York Times
June 22, 1989, Thursday, Late Edition - Final
SECTION: Section B; Page 8, Column 1; National Desk
LENGTH: 2803 words
HEADLINE: Excerpts From High Court's Decision Barring Prosecution in Flag
Protest
BYLINE: Special to The New York Times
DATELINE: WASHINGTON, June 21
BODY:
Following are excerpts from the Supreme Court decision in Texas V. Johnson,
holding that a person may not be prosecuted for burning the American flag as a
peaceful political protest.
Justice William J. Brennan Jr. wrote the opinion for the 5-to-4 majority.
Justice Anthony M. Kennedy filed a concurring opinion. Dissenting opinions were
filed by Chief Justice William H. Rehnquist and Justice John Paul Stevens.
FROM THE OPINION
By Justice Brennan
After publicly burning an American flag as a means of political protest,
Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas
law. This case presents the question whether his conviction is consistent with
the First Amendment. We hold that it is not.
While the Republican National Convention was taking place in Dallas in 1984,
respondent Johnson participated in a political demonstration dubbed the
'Republican War Chest Tour.
The demonstration ended in front of Dallas City Hall, where Johnson unfurled
the American flag, doused it with kerosene and set it on fire. While the flag
burned, the protestors chanted, 'America, the red, white, and blue, we spit on
you. After the demonstrators dispersed, a witness to the flag-burning
collected the flag's remains and buried them in his backyard. No one was
physically injured or threatened with injury, though several witnesses testified
that they had been seriously offended by the flag burning.
Of the approximately 100 demonstrators, Johnson alone was charged with a
crime. The only criminal offense with which he was charged was the desecration
of a venerated object in violation of Texas Penal Code Ann. Sec. 42.09 (a) (3)
(1989). 'Desecration of a Venerated Object''l After a trial, he was
convicted, sentenced to one year in prison and fined $2,000. The Court of
Appeals for the Fifth District of Texas at Dallas affirmed Johnson's conviction,
but the Texas Court of Criminal Appeals reversed, holding that the State could
not, consistent with the First Amendment, punish Johnson for burning the flag in
these circumstances
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(c) 1989 The New York Times, June 22, 1989
State Asserted Two Interests
To justify Johnson's conviction for engaging in symbolic speech, the State
asserted two interests: preserving the flag as a symbol of national unity and
preventing breaches of the peace. The Court of Criminal Appeals held that
neither interest supported his conviction.
Acknowledging that this Court had not yet decided whether the Government may
criminally sanction flag desecration in order to preserve the flag's symbolic
value, the Texas court nevertheless concluded that our decision in West Virginia
Board of Education V. Barnette, 319 U.S. 624 (1943), suggested that furthering
this interest by curtailing speech was impermissible.
The First Amendment literally forbids the abridgement only of ''speech,'' but
we have long recognized that its protection does not end at the spoken or
written word
Especially pertinent to this case are our decisions recognizing the
communicative nature of conduct relating to flags. Attaching a peace sign to the
flag, Spence V. Washington, 1974; saluting the flag, Barnette, and displaying a
red flag, Stromberg V. California (1931), we have held, all may find shelter
under the First Amendment.
That we have had little difficulty identifying
an expressive element in conduct relating to flags should not be surprising. The
very purpose of a national flag is to serve as a symbol of our country; it is,
one might say, ' 'the one visible manifestation of two hundred years of
nationhood.
Pregnant with expressive content, the flag as readily signifies this nation
as does the combination of letters found in ''America.'''
The Government generally has a freer hand in restricting expressive conduct
than it has in restricting the written or spoken word
It may not,
however, proscribe particular conduct because it has expressive elements
It is, in short, not simply the verbal or nonverbal nature of the expression,
but the governmental interest at stake, that helps to determine whether a
restriction on that expression is valid.
The State offers two separate interests to justify this conviction:
preventing breaches of the peace, and preserving the flag as a symbol of
nationhood and national unity. We hold that the first interest is not implicated
on this record and that the second is related to the suppression of expression.
We thus conclude that the State's interest in maintaining order is not
implicated on these facts. The State need not worry that our holding will
disable it from preserving the peace. We do not suggest that the First Amendment
forbids a state to prevent 'imminent lawless action. And, in fact, Texas
already has a statute specifically prohibiting breaches of the peace, Texas
Penal Code Ann. Sec. 42.01 (1989), which tends to confirm that Texas need not
punish this flag desecration in order to keep the peace.
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
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(c) 1989 The New York Times, June 22, 1989
We have not recognized an exception to this principle even where our flag has
been involved. In Street Y. New York, 394 U.S. 576 (1969), we held that a state
may not criminally punish a person for uttering words critical of the flag
Nor may the Government, we have held, compel conduct that would evince
respect for the flag
We never before have held that the Government may insure that a symbol be
used to express only one view of that symbol or its referents
To conclude
that the Government may permit designated symbols to be used to communicate only
a limited set of messages would be to enter territory having no discernible or
defensible boundaries.
Which Symbols Warrant Unique Status?
Could the Government, on this theory, prohibit the burning of state flags? Of
copies of the Presidential seal? Of the Constitution? In evaluating these
choices under the First Amendment, how would we decide which symbols were
sufficiently special to warrant this unique status? To do so, we would be forced
to consult our own political preferences, and impose them on the citizenry, in
the very way that the First Amendment forbids us to do.
There is, moreover, no indication - either in the text of the Constitution or
in our cases interpreting - that a separate juridical category exists for the
American flag alone. Indeed, we would not be surprised to learn that the persons
who framed our Constitution and wrote the Amendment that we now construe were
not known for their reverence for the Union Jack.
The First Amendment does not guarantee that other concepts virtually sacred
to our nation as a whole such as the principle that discrimination on the
basis of race is odious and destructive will go unquestioned in the
marketplace of ideas. We decline, therefore, to create for the flag an exception
to the joust of principles protected by the First Amendment.
We are fortified in today's conclusion by our conviction that forbidding
criminal punishment for conduct such as Johnson's will not endanger the special
role played by our flag or the feelings it inspires
A Reaffirmation of Principles
We are tempted to say, in fact, that the flag's deservedly cherished place in
our community will be strengthened, not weakened, by our holding today. Our
decision is a reaffirmation of the principles of freedom and inclusiveness that
the flag best reflects, and of the conviction that our toleration of criticism
such as Johnson's is a sign and source of our strength.
The way to preserve the flag's special role is not to punish those who feel
differently about these matters. It is to persuade them that they are wrong
We can imagine no more appropriate response to burning a flag than waving
one's own, no better way to counter a flag-burner's message than by saluting the
flag that burns, no surer means of preserving the dignity even of the flag that
burned than by - as one witness here did - according its remains a respectful
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(c) 1989 The New York Times, June 22, 1989
burial. We do not consecrate the flag by punishing its desecration, for in doing
so we dilute the freedom that this cherished emblem represents.
By Justice Kennedy,
Concurring
I write not to qualify the words Justice Brennan chooses so well, for he says
with power all that is necessary to explain our ruling. I join his opinion
without reservation, but with a keen sense that this case, like others before us
from time to time, exacts its personal toll.
The case before us illustrates better than most that the judicial power is
often difficult in its exercise. We cannot here ask another branch to share
responsibility, as when the argument is made that a statute is flawed or
incomplete. For we are presented with a clear and simple statute to be judged
against a pure command of the Constitution. The outcome can be laid at no door
but ours.
The hard fact is that sometimes we must make decisions we do not like. We
make them because they are right, right in the sense that the law and the
Constitution, as we see them, compel the result. And so great is our commitment
to the process that, except in the rare case, we do not pause to express
distaste for the result, perhaps for fear of undermining a valued principle that
dictates the decision. This is one of those rare cases.
Our colleagues in dissent advance powerful arguments why respondent may be
convicted for his expression, reminding us that among those who will be dismayed
by our holding will be some who have had the singular honor of carrying the flag
in battle. And 1 agree that the flag holds a lonely place of honor in an age
when absolutes are distrusted and simple truths are burdened by unneeded
apologetics.
With all due respect to those views, I do not believe the Constitution gives
us the right to rule as the dissenting members of the Court urge, however
painful this judgment is to announce. Though symbols often are what we ourselves
make of them, the flag is constant in expressing beliefs Americans share,
beliefs in law and peace and that freedom which sustains the human spirit. The
case here today forces recognition of the costs to which those beliefs commit
us. It is poignant but fundamental that the flag protects those who hold it in
contempt.
FROM DISSENTING OPINIONS
By Chief Justice Rehnquist
In holding this Texas statute unconstitutional, the Court ignores Justice
Holmes's familiar aphorism that ''a page of history is worth of volume of
logic.' For more than 200 years, the American flag has occupied a unique
position as the symbol of our nation, a uniqueness that justifies a governmental
prohibition against flag burning in the way respondent Johnson did here.
At the time of the American Revolution, the flag served to unify the 13
colonies at home while obtaining recognition of national sovereignity abroad.
Ralph Waldo Emerson's Concord Hymn describes the first skirmishes of the
Revolutionary War in these lines:
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''By the rude bridge that arched the flood,
Their flag to April's breeze unfurled,
Here once the embattled farmers stood,
And fired the shot heard round the world.
In the First and Second World Wars, thousands of our countrymen died on
foreign soil fighting for the American cause. At Iwo Jima in the Second World
War, United States Marines fought hand to hand against thousands of Japanese. By
the time the marines reached the top of Mount Suribachi, they raised a piece of
pipe upright and from one end fluttered a flag. That ascent had cost nearly
6,000 American lives
The flag symbolizes the nation in peace as well as in war. It signifies our
national presence on battleships, airplanes, military installations and public
buildings from the United States Capitol to the thousands of county courthouses
and city halls throughout the country
No other American symbol has been as universally honored as the flag. In 1931
Congress declared ''The Star Spangled Banner'' to be our national anthem. In
1949 Congress declared June 14th to be Flag Day. In 1987 John Philip Sousa's
''The Stars and Stripes Forever'' was designated as the national march. Congress
has also established ''The Pledge of Allegiance to the Flag'' and the manner of
its deliverance
ming, all of the states now have statutes prohibiting the
burning of the flag
The result of the Texas statute is obviously to deny one in Johnson's frame
of mind one of many means of 'symbolic speech. Far from being a case of ' ' one
picture being worth a thousand words,' flag burning is the equivalent of an
inarticulate grunt or roar that, it seems fair to say, is most likely to be
indulged in not to express any particular idea, but to antagonize others
The Texas statute deprived Johnson of only one rather inarticulate symbolic
form of protest - a form of protest that was profoundly offensive to many - and
left him with a full panoply of other symbols and every conceivable form of
verbal expression to express his deep disapproval of national policy
But the Court today will have none of this. The uniquely deep awe and respect
for our flag felt by virtually all of us are bundled off under the rubric of
'designated symbols'' that the First Amendment prohibits the Government from
''establishing.' But the Government has not ''established'' this feeling; 200
years of history have done that. The Government is simply recognizing as a fact
the profound regard for the American flag created by that history when it enacts
statutes prohibiting the disrespectful public burning of the flag.
The Court concludes its opinion with a regrettably patronizing civics
lecture, presumably addressed to the members of both houses of Congress, the
members of the 48 state legislatures that enacted prohibitions against flag
burning, and the troops fighting under that flag in Vietnam who objected to
its being burned: ''The way to preserve the flag's special role is not to punish
those who feel differently about these matters. It is to persuade them that they
are wrong.
The Court's role as the final expositor of the Constitution is well
established, but its role as a platonic guardian admonishing those responsible
to public opinion as if they were truant school children has no similar place
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in our system of government.
By Justice Stevens,
Dissenting
Even if flag burning could be considered just another species of symbolic
speech under the logical application of the rules that the Court has developed
in its interpretation of the First Amendment in other contexts, this case has an
intangible dimension that makes those rules inapplicable.
A country's flag is a symbol of more than ''nationhood and national unity.
It also signifies the ideas that characterize the society that has chose that
emblem, as well as the special history that has animated the growth and power of
those ideas
So it is with the American flag. It is more than a proud symbol of the
courage, the determination and the gifts of nature that transformed 13 fledgling
colonies into a world power. It is a symbol of freedom, of equal opportunity, of
religious tolerance and of good will for other peoples who share our
aspirations
The value of the flag as a symbol cannot be measured. Even so, I have no
doubt that the interest in preserving that value for the future is both
significant and legitimate. The creation of a Federal right to post
bulletin boards and graffiti on the Washington Monument might enlarge the market
for free expression, but at a cost I would not pay.
Similarly, in my considered judgment, sanctioning the public desecration of
the flag will tarnish its value - both for those who cherish the ideas for which
it waves and for those who desire to don the robes of martyrdom by burning it.
That tarnish is not justified by the trivial burden on free expression
occasioned by requiring that an available, alternative mode of expression -
including uttering words critical of the flag - be employed.
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 Role.
it cannot be true that the flag that uniquely symbolizes their power is not
itself worthy of protection from unnecessary descreation.
TYPE: Text
SUBJECT: UNITED STATES POLITICS AND GOVERNMENT; FLAGS, EMBLEMS AND INSIGNIA;
DECISIONS AND VERDICTS; DEMONSTRATIONS AND RIOTS
ORGANIZATION: SUPREME COURT (US)
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STATEMENT
OF
WILLIAM P. BARR
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL
UNITED STATES DEPARTMENT OF JUSTICE
BEFORE
THE
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES
IN SUPPORT OF
A CONSTITUTIONAL AMENDMENT TO PROHIBIT
PHYSICAL DESECRATION OF THE FLAG
OF THE UNITED STATES
JULY 19, 1989
Mr. Chairman and Members of the Subcommittee:
Thank you for providing me the opportunity to appear today.
I am pleased to present to the Subcommittee the Administration's
views on a constitutional amendment to allow Congress and the
States to prohibit the physical desecration of the Flag of the
United States. This proposed amendment is prompted by the
Supreme Court's recent decision in Texas V. Johnson, 57 U.S.L.W.
4770 (June 21, 1989), that a State cannot punish a person for
burning the Flag. For reasons which I will explain, a
constitutional amendment is the only way to protect the Flag in
the wake of the Court's expansive decision. An amendment is the
only way to adequately respond to the overwhelming--and
understandable--sentiment of the American people that the Flag
must be protected. I trust that few among us would disagree that
the Flag is deserving of protection. As the symbol of our
Nation, the Flag is the embodiment of our commitment to freedom.
It stands in sacred honor of those who have sacrificed their
lives in defense of that freedom. It holds in sacred trust the
spirit of the American people.
Given the deserved reverence accorded the Flag, it is not at
all surprising that the American people reacted with outrage when
they were told that this Flag can be burned, shredded and spat
upon with impunity. It would have been surprising had they
reacted otherwise.
The President shares the profound sense of personal
violation felt by the American people. He firmly believes that
we have an obligation to the people to act swiftly and decisively
to protect the Flag from those who would break our spirit through
desecration of this one symbol that unites us.
We must be mindful that we here in Washington are but
trustees of the will of the people; our authority is derivative.
The will of the people is unmistakable. They want the Flag of
the United States protected from those who would defile it.
I. INTRODUCTION
The issue that has occupied the lion's share of the
Subcommittee's time thus far is not whether to provide protection
for the Flag, but how to provide that protection. Specifically,
the debate has centered around whether an amendment to the
Constitution is required or whether a statute would suffice. The
Department of Justice, at the request of the President, has
carefully considered whether it is possible to protect the Flag
through statute. You have my assurance that the President and
the Attorney General would be the first to support a statute if
they thought a statute could survive constitutional challenge and
protect the Flag from desecration. Unfortunately, we are
convinced that, in light of the expansive decision of the Court,
a statute simply would not suffice, and that the only way to
ensure protection of the Flag is through a constitutional
amendment. This is confirmed by even the most cursory reading of
the Court's opinion.
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The reason that a statute purporting to protect the Flag
would be unconstitutional is simple. In Texas V. Johnson, the
Court held that whenever someone burns the Flag for expressive
purposes, that conduct is protected by the First Amendment; that
to prohibit such conduct, the Government must have a compelling
reason that is unrelated to expression; that the Government's
reason for protecting the Flag (to preserve it as a symbol of
national unity) is inherently and necessarily related to
expression; and that the Government's interest in protecting the
Flag as a symbol of our national unity can never be sufficiently
compelling to overcome an individual's First Amendment interest
in burning the Flag for communicative purposes. This reasoning
plainly would extend to any Flag desecration statute enacted to
protect the Flag as a symbol of our Nation.
We do not believe that it is necessarily unfortunate that an
amendment is required. The amendment process serves as a
reminder, lest we forget, that the law is of the people.
II. ANALYSIS OF TEXAS V. JOHNSON
To make an informed judgment as to whether an amendment is
required, it is necessary to understand both the way in which the
Supreme Court analyzes symbolic speech cases, and the reasoning
employed by the Court in reaching its decision in Texas V.
Johnson.
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The Court has repeatedly held that the First Amendment
extends to symbolic speech where the conduct was intended to
convey a message and the likelihood was great that the message
conveyed would be understood. See Spence V. Washington, 418 U.S.
405, 410-411 (1974). For example, the Court held in Brown V.
Louisiana, 383 U.S. 131 (1966), that a peaceful sit-in in a
public library to protest the library's policy of segregation was
protected by the First Amendment. Where the Government attempts
to prohibit, punish or otherwise burden communicative conduct,
the Court carefully analyzes the Government's interest in
imposing the burdens. If the Government's interest is unrelated
to suppression of expression, the regulation is subjected to the
comparatively more lenient standard set forth in the Court's
opinion in United States V. O'Brien, 391 U.S. 367 (1968). Under
that standard, the Government's interest must only be important
or substantial to justify the regulation. Id. at 377. If, on
the other hand, the Government's interest is related to
suppression of expression, the regulation is subjected to the
"most exacting scrutiny." Texas V. Johnson, 57 U.S.L.W. 4770,
4774 (quoting Boos V. Barry, 485 U.S. 312, 321 (1988)). Under
this standard, the Government's interest must be compelling.
Turning to the decision in Texas V. Johnson, the threshold
question addressed by the Court was whether Johnson's burning of
the Flag constituted expressive conduct protected by the First
Amendment. Noting that the Flag is "[p]regnant with expressive
content," id. at 4772, the Court readily determined that
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Johnson's burning of the Flag was "sufficiently imbued with
elements of communication'" id. (quoting Spence V. Washington,
418 U.S. 405, 409 (1974)), to justify invocation of the First
Amendment.
The Court then analyzed the interests advanced by the State
in support of its Flag burning prohibition to determine whether
those interests related to the suppression of expression. Texas
V. Johnson, id. at 4772. The State of Texas asserted two
interests in support of its prohibition on Flag burning:
preventing breaches of the peace, and preserving the Flag as a
symbol of nationhood and national unity. The Court held that the
State's interest in preventing breaches of the peace was not
implicated on the record because there was no evidence that
Johnson's burning of the Flag actually caused a breach of the
peace, and he was not prosecuted for breach of the peace. Id. at
4772-4773.
Significantly, however, the Court held that the government
can never assume that Flag burning will cause a breach of the
peace. Id. at 4773. Moreover, said the Court, Johnson's burning
of the Flag as a "generalized expression of dissatisfaction with
the policies of the Federal Government" was not the equivalent of
"fighting words" that could cause a breach of the peace because
"[n]o reasonable onlooker" would regard it as a "direct personal
insult or an invitation to exchange fisticuffs." Id. The Court
went on to say that its precedents "recognize that a principal
'function of free speech under our system of government is to
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invite dispute. It may indeed best serve its high purpose when
it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. in Id.
(quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
The Court then turned to the State's asserted interest in
preserving the Flag as a symbol of our Nation. It held that this
interest was directly related to the suppression of expression:
"[T]he Government's interest in preserving the flag's special
symbolic value 'is directly related to expression in the context
of activity'" intended to express a message. Id. (quoting
Spence, 418 U.S. at 414 n.8). Because the State's interest in
preventing Flag burning was related to expression, the Court held
that the considerably less demanding standard of O'Brien did not
apply, and that the State's interest must be subjected to the
"most exacting scrutiny." Id. at 4774.
The Court held that Texas' interest in preserving the Flag
as a symbol of our Nation and national unity could not justify
its prohibition on Flag burning. The Court reasoned that
governmental protection of the Flag because of its symbolic
importance to the Nation would be tantamount to a governmental
directive that the "symbol be used to express only one view of
that symbol or its referents." Id. at 4775. The Government,
said the Court, may not "foster its own view of the flag by
prohibiting expressive conduct relating to it." Id. Any attempt
to preserve the Flag as a symbol offends the "bedrock principle"
that "the Government may not prohibit the expression of an idea
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simply because society finds the idea itself offensive or
disagreeable." Id. at 4774. Finally, the Court explicitly
refused to accord the Flag any special constitutional
significance, finding "no indication - either in the text of the
Constitution or in [its] cases interpreting it that a separate
juridical category exists for the American flag alone." Id. at
4775.
III. CONSTITUTIONALITY OF FLAG DESECRATION
STATUTES AFTER TEXAS V. JOHNSON
We think it is plain under this reasoning that any statute
prohibiting desecration of the Flag for communicative purposes
would be unconstitutional. The Flag is by nature communicative.
It is a symbol "[p]regnant with expressive content." Id. at
4772. Thus, the Government's interest in preserving the Flag as
a symbol is inherently related to expression. It is precisely
because the Flag is the symbol of this Nation that the Government
wants it protected against conduct that will undermine its
communicative force, i.e., conduct that will prevent or interfere
with the message communicated by the Flag. As the Court observed
in Texas V. Johnson, the Government "is concerned that such
conduct will lead people to believe either that the flag does not
stand for nationhood and national unity, but instead reflects
other, less positive concepts, or that the concepts reflected in
the flag do not in fact exist, that is, we do not enjoy unity as
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a Nation." Id. at 4773. Accordingly, any Flag desecration
statute will be subject to the "most exacting scrutiny."
The Court has held that under this exacting scrutiny the
Government's interest in preserving the symbolic value of the
Flag can never be sufficiently compelling to stop an individual
from desecrating the Flag whenever the desecration is done for
communicative purposes.
An asserted interest in preventing breaches of the peace
would not save the statute because the Court also held that the
Government may never assume that Flag burning or other Flag
desecration will cause a breach of the peace. Moreover, the
Court has said that desecration of the Flag as a "generalized
expression of dissatisfaction with the policies of the Federal
Government" cannot cause a breach of the peace because "[n]o
reasonable onlooker" would regard it as a "direct personal insult
or an invitation to exchange fisticuffs." Id. at 4773. The
Court's categorical rejection on these grounds of the only two
conceivable interests for prohibiting the desecration of the Flag
render it certain that the Court would strike down any such
statute.
It has been argued that the Court would uphold a statute if
it prohibited all Flag desecration, whether in public or private,
and whether done with contempt or not. This argument is
demonstrably wrong because it assumes that the Government's
reason for enacting a facially neutral prohibition (that is, a
statute neutral as to the particular viewpoint expressed) would
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be "unrelated to expression." It would not be. The Government's
reason for passing a viewpoint-neutral prohibition would be the
same as its reason for passing a prohibition on contemptuous
desecration only: protection of the symbolic value of the Flag.
The Supreme Court has held in two successive cases, Spence V.
Washington and Texas V. Johnson, that it is the Government's
reason for the prohibition, not the scope of the prohibition,
that determines the level of scrutiny. Because the Government's
reason for protecting the Flag is necessarily related to
expression, the prohibition would always be subjected to exacting
scrutiny, and therefore would never prevail over an individual's
First Amendment interest in expressive conduct.
In essence, the argument fails to appreciate that a statute
neutral as to the particular viewpoint expressed can nonetheless
be unconstitutional if its prohibition is content-based (i.e.,
related to expression). The Supreme Court has distinguished
between "content" and "viewpoint" regulation. See, e.g., Boos V.
Barry, 108 S. Ct. 1157, 1163-1164 (1988). If the regulation is
either content-based or viewpoint-based, it is subject to the
"most exacting scrutiny." Id. Importantly, a regulation can be
viewpoint-neutral, but content-based. Id. Even assuming that
the proposed statute would be held to be viewpoint-neutral (which
itself is doubtful), it would never be held content-neutral.
A statute is content-neutral only if its restrictions on
communicative activity "are justified without reference to the
content of the regulated speech." Id. at 1163 (quoting Virginia
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Pharmacy Board V. Virginia Citizens Consumer Council, Inc., 425
U.S. 748, 771 (1976)). Its restrictions must have "nothing to do
with that speech;" the statute must not have been "aim[ed] at the
suppression of free expression." Id.; see also Texas V. Johnson,
57 U.S.L.W. 4770, 4774.
The restrictions imposed on speech, even by a facially
neutral Flag desecration statute, neither would nor ever could be
justified by anything other than the Government's interest in
protecting the symbolic value of the Flag. (Any legislative
determination to the contrary would plainly be pretext and would
be recognized by the Court as such. See, e.g., Wallace V.
Jaffree, 472 U.S. 38 (1985)) Indeed, in Spence V. Washington,
the Court considered a facially neutral statute virtually
identical to the statute now proposed. Prosecution under the
statute at issue in that case, like under the statute proposed
here,
[did] not depend upon whether the flag is used for
communicative or noncommunicative purposes; upon
whether a particular message is deemed commercial or
political; upon whether the use of the flag is
respectful or contemptuous; or upon whether any
particular segment of the State's citizenry might
applaud or oppose the intended message.
Spence, 418 U.S. at 422-23 (Rehnquist, J., dissenting). In
holding the statute unconstitutional as applied to a person
engaged in communicative conduct, the Court explained that
[even] [i]f [the government's interest in preserving
the value of the Flag as a symbol of our Nation] is
valid, we note that it is directly related to
expression in the context of activity like that
undertaken by appellant.
- 10 -
Id. at 414 n.8. Justice Brennan, the author of the Court's
opinion in Texas v. Johnson, in fact has previously written that,
the only basis for a governmental interest (if any) in
protecting the flag is precisely the fact that the flag
has substantive meaning as a political symbol. Thus,
assuming that there is a legitimate interest at stake,
it can hardly be said to be one divorced from political
expression.
Kime V. United States, 459 U.S. 949, 953 (1982) (Brennan, J.,
dissenting). And the Supreme Court in Texas v. Johnson has now
held that the Government's interest in protecting the Flag as a
national symbol is, by definition, related to the suppression of
free expression. Thus, it simply could never be successfully
maintained that such a statute was content-neutral. The statute
is not rendered content-neutral merely because it prohibits
private desecrations as well as public desecrations of the Flag.
The Government's purpose in prohibiting the desecration is the
same whether or not the statute extends to private conduct.
Because any statute would necessarily relate to expression,
the more relaxed standard of O'Brien would never apply, and the
statute would always be subject to the "most exacting scrutiny."
The Supreme Court in Texas V. Johnson has now unequivocally held,
however, that the government's interest in protection of the
symbolic value of the Flag will never support a prohibition on
the communicative desecration of the Flag under this heightened
standard. As Justice Brennan has said, "any governmental
interest in protecting the flag's symbolism is one that cannot
pass muster under the third branch of the O'Brien test." Kime V.
United States, 459 U.S. at 953 (cert. denied, Brennan, J.,
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dissenting). Moreover, the Court has flatly refused to recognize
a separate constitutional or juridical category for the Flag.
In the face of the Court's holdings in Texas V. Johnson,
and Spence V. Washington, and especially given the sweeping
reasoning in those cases, it cannot be seriously maintained that
a statute aimed at protecting the Flag would be constitutional.
Significantly, Justice Brennan himself has even written that a
statute "that simply outlawed any public burning or mutilation of
the flag, regardless of the expressive intent or nonintent of the
actor," would be "invalid for the reasons stated in
...
Spence. n Kime V. United States, 459 U.S. at 955 n.7.
IV. PROPOSED CONSTITUTIONAL AMENDMENT
If we are interested in protecting the Flag from
desecration, the focus should be on the various amendments that
have been proposed in the two Houses of the Congress. Today, I
would like to discuss the amendment that has been proposed by
Congressmen Michel and Montgomery, and endorsed by the President.
That amendment reads: "The Congress and the States shall have
power to prohibit the physical desecration of the Flag of the
United States."
The first, and perhaps most important, point to be made is
that the amendment does not itself prohibit Flag desecration.
The amendment merely empowers Congress and the States to prohibit
legislatively the physical desecration of the Flag, and
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establishes the boundaries within which they may legislate. With
the ratification of this amendment, Congress and State
legislatures, the representatives of the people, would be able to
decide if they want to prohibit Flag desecration, and if so, in
what manner. We believe it is fitting that the people should
decide through their elected representatives the extent to which
they wish to prohibit desecration of their national symbol. This
amendment gives them that opportunity.
The amendment would define the framework within which the
legislative authority of the Congress and the States could be
exercised. Within this framework, however, the Congress and the
States would have wide latitude to prohibit that conduct toward
the Flag that they believe deserves proscription.
If Congress and the States chose to legislate, as we
anticipate they would, they would be permitted and obliged to
draw lines. For example they would have to determine how they
wished to define "Flag" and "physical desecration" of the Flag.
They would have to decide whether to make intent a necessary
element of a Flag desecration offense. Doubtless, there would be
other questions as well. I can describe the general nature of
the decisions that would have to be made on the principal issues.
But again I would emphasize that this amendment creates only the
necessary framework; the bulk of the decisionmaking would be left
to the legislatures.
The first question that the legislatures would face is how
to define "Flag." There would be any number of options that
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would be permissible under the amendment. Let me discuss three
of the most obvious. First, "Flag" could be defined narrowly as
only a cloth, or other material readily capable of being waved or
flown, with the characteristics of the official Flag of the
United States, as described in 4 U.S.C. § 1. (This definition
could also include historic versions of the Flag (i.e., a 13-star
version) A benefit of such an objective definition is that
there would be absolute certainty as to what one would be
prohibited from desecrating. One of the costs of such a narrow
definition, however, is that legislatures would not be
prohibiting acts that are just as damaging to the symbolism of
the Flag as desecration of the Flag itself. People would simply
circumvent any statutory prohibition by desecrating a Flag that
is slightly different in an undetectable way from the actual
Flag. For instance, they would burn or shred a Flag that has
only 49 stars, or one on which the stripes are of incrementally
different dimension, but is otherwise identical to the official
Flag. While we believe the amendment would certainly permit the
legislatures to define "Flag" in this manner, legislatures would
be free to adopt a broader definition, as Congress itself has
done.
A second option for the legislatures would be to define
"Flag" as anything that a reasonable person would perceive to be
a Flag of the United States meeting the dimensions and having the
characteristics of the Flag as set forth in 4 U.S.C. § 1, and
capable of being readily waved or flown, whether or not it is
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precisely identical to the Flag as so defined. This definition
would extend protection to any Flag with a slight variation
(i.e., a Flag with a stripe missing). However, it would not
prohibit destruction of a poster or a painting of the Flag, or
the painting of a picture of the Flag with a swastika on it,
because a reasonable observer would not mistake such an object as
an actual Flag. In this regard, the definition is substantially
narrower than the existing federal statute, which extends to any
object that "an average person seeing the same without
deliberation may believe
to represent" the Flag. 18 U.S.C.
§ 700 (b)
A third option for Congress and the States would be to
define "Flag" as it is defined in the existing federal Flag
desecration statute, 18 U.S.C. § 700(b). The federal statute
prohibiting Flag desecration, 18 U.S.C. § 700(b), defines "Flag"
as follows:
any flag, standard, colors, ensign, or any picture or
representation of either, or of any part or parts of
either, made of any substance or represented on any
substance, of any size evidently purporting to be
either of said flag, standard, color, or ensign of the
United States of America, or a picture or a
representation of either, upon which shall be shown the
colors, the stars and the stripes, in any number of
either thereof, or of any part or parts of either, by
which the average person seeing the same without
deliberation may believe the same to represent the
flag, standards, colors, or ensign of the United States
of America.
18 U.S.C. § 700(b). In general terms, this definition includes
any Flag, portion of a Flag, or any picture or representation of
a Flag. It would allow the legislatures to protect depictions of
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the Flag, such as posters, murals, pictures, buttons, and any
other representation of the Flag. This definition would be
consistent with the Government's interest in preserving the
Flag's symbolic value because it recognizes that the desecration
of representations of the Flag damage that interest as much as
desecration of the Flag itself. I would note that even the
legislative proposals proffered to redress the Court's decision
would retain this definition of Flag.
Regardless of how "Flag" is defined, however, Congress and
the State legislatures would have to define the term clearly to
avoid successful challenge on the ground that they are
unconstitutionally vague. In fact, it is worth noting that many
Flag desecration statutes have been invalidated on the ground
that they were unconstitutionally vague. See, e.g., Smith V.
Goguen, 415 U.S. 566 (1974).
We believe the phrase "physical desecration," too, would
provide some latitude to Congress and the States, although the
amendment would significantly channel the legislative decision.
There are two discrete aspects of the term "physical
desecration," "physical" and "desecration." The amendment would
not permit Congress or the States to punish or penalize any non-
physical desecration of the Flag. Some contact with the Flag,
some physical touching of the Flag, whether by the person himself
or caused by the person would be essential. The legislatures
thus could not punish or penalize mere words or gestures directed
at the Flag, regardless of their offensiveness.
- 16 -
The amendment would simply import the common-sense
understanding of the term "desecration." Webster's Ninth New
Collegiate Dictionary defines "desecrate" as follows: "1. to
violate the sanctity of: PROFANE 2: to treat irreverently or
contemptuously often in a way that provokes outrage on the part
of others." Black's Law Dictionary contains a similar definition
of "desecrate": "To violate sanctity of, to profane, or to put
to unworthy use." These definitions capture the essence of the
term as used in the amendment. Indeed, these definitions make
clear that a ban on "desecration" is particularly well suited for
preserving the symbolic value of the Flag.
There are an infinite number of forms of desecration. I
will not attempt even a representative listing here. But
obviously, the legislatures could clearly prohibit the burning,
shredding and similar defilement of the Flag.
I would note, however, that we do not understand that the
legislatures could ever prohibit the proper display of the Flag
merely because they believe the particular surroundings of the
display are unfitting for the Flag. The proper display of the
Flag, without more, could never constitute an act of physical
desecration. We simply do not believe the Government should be
in the position of making value judgments about whether the
proper display of the Flag in particular settings and by
particular persons is nonetheless demeaning. As long as the Flag
is displayed in a customary manner, and not physically
mistreated, the amendment would not authorize punishment or
- 17 -
penalty. of course, the legislatures could constitutionally
prohibit the display of the Flag in a manner that they deemed
inappropriate because such proscriptions would not require value
judgments about who could display the Flag or where it could be
displayed. Thus, they could prohibit, for example, the display
of the Flag on the floor or the upside-down display of the Flag.
Beyond this, I would simply urge the Subcommittee not to
lose sight of the ultimate objective of protecting the Flag by
becoming mired in countless hypotheticals that can be posed to
test at the margins choice of the term "desecration." One can
always construct hypotheticals that push the limits of any word
in the language. This is as true of statutory language as it is
of constitutional language. In the end, those who are
responsible for the ultimate choice of language, must simply
choose terms that most clearly reach the conduct they wish to
reach, and only that conduct. At the margins, one has no choice
but to rely upon the individual legislatures in the first
instance, and ultimately on the courts, to prevent application of
the language in a manner that would do injustice to the drafters'
intent.
We believe that the phrase "physical desecration" is
sufficiently flexible to permit the Congress and the States to
reach all physical acts of desecration with which the people are
concerned, yet sufficiently exacting to prohibit them from
reaching activity that is properly protected.
- 18 -
proposed statute. While we do not believe that most people want
to prohibit actions, such as those identified above, when they
are not done to cast contempt, we believe that Congress and the
States should be free to make that determination as they see fit,
to create the exceptions that logic and reason compel.
By way of summary, the Michel-Montgomery amendment confers
substantial discretion on Congress and the States to determine
precisely the degrading acts toward our Flag that are to be
prohibited. The amendment gives them the latitude to draw
reasonable lines that will reflect the conscience of the people.
The Administration believes that this is as it should be.
The proposed statute not only prohibits much conduct that no one
wishes to prohibit; ultimately it would not constitutionally
prohibit the very acts that we wish to prohibit.
CONCLUSION
On behalf of the President, I urge the prompt approval of
the Michel-Montgomery Amendment so that the ratification process
may begin.
- 20 -
The third area in which Congress and the States will have to
draw lines relates to the actor's state of mind. The amendment
only authorizes prohibition of voluntary actions; involuntary
acts--such as accidents--could not be punished. The more
difficult issue is whether the actor must intend to be
contemptuous toward the Flag. We believe Congress and the States
are, and should be, free to decide whether to require intent. We
suspect that they will choose to require that the actor intend to
cast contempt. Because the overwhelming number of physical acts
that are of concern to us are intended to express contempt for
the Flag, we would not be especially troubled were they to choose
to require intent. Nevertheless, there may well be conduct that
the legislatures would want to prohibit, irrespective of the
intent of the actor, and they would be permitted to do so under
the amendment. The legislatures would be free to impose an
intent requirement or not, as they deemed appropriate.
We think offering legislatures the option of prohibiting
only intentionally contemptuous, physical desecration represents
a significant advantage of the amendment over the proposed
statute. Presumably to convince the courts that its
proscriptions are unrelated to expression, the proposed statute
would require that the Government prohibit acts without regard to
whether they cast contempt. Thus, a child who innocently steps
on a Flag, a person who crumbles a Fourth of July Flag-decorated
paper cup, or a veteran who burns an old Flag out of reverence
and respect would all presumably be prosecutable under the
- 19 -
From Brent
The Department of Justice has concluded unequivocally that a
statute attempting to protect the Flag would itself be
unconstitutional. This should put to rest the arguments that
have been made that a statute would correct the Court's decision
in Texas V. Johnson.
The Assistant Attorney General presented a 20-page legal
analysis of the Department's position and answered questions from
members of a subcommittee of the House Judiciary Committee. He
explained to the subcommittee that, under the law, any statute
would be "dead on arrival" and would never withstand
constitutional scrutiny. He explained that the statute that has
been proposed in any event would be absurdly broad, and would
pose a serious threat to civil liberties by criminalizing a broad
range of innocent and unoffensive conduct. In contrast, the
narrow amendment that has been proposed by Congressmen Michel and
Montgomery and Senators Dole and Dixon would address only the
specific conduct of contemptuous desecration of the Flag, which
is what offends the American people.
Before hearing the Department's position, former Solicitor
General Fried, now a Harvard Law School professor, had submitted
a written statement to the subcommittee stating that a statute
might suffice. In his testimony before the subcommittee
yesterday, Mr. Fried reversed his position, telling the
subcommittee that the Department's legal analysis is
"devastating," and that a statute would not be constitutional.
The subcommittee, chaired by Congressman Don Edwards (D-
Cal.), is known as the "graveyard for constitutional amendments"
because of its unwillingness to report out proposed amendments.
Congressman Edwards and others on the subcommittee are known to
be opposed to an amendment.
The President fears that an effort may be afoot to bottle up
the proposed amendment in subcommittee. He has reiterated his
position that the people should be allowed to decide whether an
amendment to the Constitution should be made to protect the Flag.
And he will do all within his power to see to it that the people
are given that opportunity to decide for themselves.
TOTAL P.02
Texas V. Johnson
A constitutional amendment is necessary to protect the Flag in the
wake of the Supreme Court's decision in Texas V. Johnson; a statute
would not suffice, given the Court's reasoning. The Court said that
virtually all flag burning is communicative conduct and, as a
consequence, any prohibition of flag burning can only be justified by
a compelling governmental interest. There are only two conceivable
governmental interests in preventing flag desecration:
(1) preservation of the Flag as a symbol of our Nation, and (2)
preservation of the peace. The Court held, however, that the
government's interest in preserving the symbolic value of the Flag
can never be compelling, and that the government can never assume
that Flag burning will result in breach of the peace. Moreover, the
Court held that there is no "separate juridical category" for the
Flag under the Constitution.
*****
A. Burning the Flag or any other mistreatment of the Flag is
virtually always communicative conduct. The person prosecuted for
such conduct, therefore, may invoke the First Amendment.
1. "[w]e have had little difficulty identifying an expressive
element in conduct relating to flags." (Slip op. at 7).
2. The Flag is "pregnant with expressive content." (Slip op. at 7).
B. The inquiry then focuses on the Government's interests in
prohibiting the conduct. If the reasons for prohibiting the conduct
are "unconnected to expression," they are subject to the lower
standard of O'Brien, and they will prevail over the individual's
First Amendment interests, provided they are "important or
substantial." (Slip op. at 9). If the Government's reasons for
prohibiting the conduct are related to the expression, the statute is
subject to "exacting scrutiny."
C. The Government has two obvious interests in prohibiting flag
burning and other flag desecration: (1) preventing breaches of the
peace; and (2) protecting and preserving the symbolic value of the
Flag. After Texas V. Johnson, neither interest will support a
statutory ban on desecration of the Flag.
D. The Government's interest in preventing breaches of the peace
cannot justify a statutory ban on flag desecration.
1. The Government is not allowed to assume that every flag
burning will lead to a breach of the peace. "We have not
permitted the Government to assume that every expression of a
provocative idea will incite a riot. (Slip op. at 11). Instead,
there must always be "careful consideration of the actual
circumstances surrounding [each] expression." (Slip op. at 11).
2. Burning or other desecration of the Flag as a "generalized
expression of dissatisfaction with the policies of the Federal
Government" is not the equivalent of "fighting words" that could
cause a breach of the peace because "no reasonable onlooker"
would regard it as a "direct personal insult or an invitation to
exchange fisticuffs." (Slip op. at 12).
E. The Government's second interest, preserving the symbolic value
of the flag, is directly related to the suppression of expression.
1. "The Government's interest in preserving the flag's special
symbolic value is 'directly related to expression
(Slip op. at 12).
2. Because the Government's interest "blossoms only when a
person's treatment of the flag communicates some message," it is
12-13). "thus related 'to the suppression of expression.'" (Slip op. at
F. Because the Government's interest in the symbolic value of the
flag is related to expression, any ban will be subject to the "most
exacting scrutiny" to determine if it justifies limiting an
individual's First Amendment interests. (Slip op. at 15).
G. Under the "most exacting scrutiny" standard, the Government's
interest in preserving the symbolic value of the Flag will never
prevail over the individual's communicative interests.
1. The Government may not "foster its own view of the flag by
prohibiting expressive conduct relating to it." (Slip op. at 17-
18). "We never before have held that the Government may ensure
that a symbol be used to express only one view of that symbol or
its referents." (Slip op. at 19).
2. "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." (Slip op. at 16).
H. The Flag has no independent constitutional significance that
would permit its protection as against an individual's right to
communicate by burning the Flag.
1. There is "no indication - either in the text of the
Constitution or in our cases interpreting it - that a separate
juridical category exists for the American flag alone." (Slip
op. at 20).
2. "We decline
to create for the flag an exception to the
joust of principles protected by the First Amendment." (Slip op.
at 20).
- 2 -
WITNESS LIST
HOUSE COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
HEARING: Statutory and Constitutional Responses
to the Supreme Court Decision in
Texas V. Johnson (desecration
of the flag)
DATE: Wednesday, July 19, 1989
TIME: 9:30 a.m.
ROOM: 2141 Rayburn House Office Building
William Barr
Assistant Attorney General
Office of Legal Counsel
U.S. Department of Justice
Washington, D.C.
H
The Honorable Robert M. Bork
American Enterprise Institute
Washington, D.C.
Charles Fried
Harvard Law School
Cambridge, Massachusetts
ID# 051370
THE WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
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DATE RECEIVED: JULY 07, 1989
NAME OF CORRESPONDENT: MR. STANLEY S. HUBBARD S.
SUBJECT: WRITES REGARDING THE SUPREME COURT DECISION
ON BURNING OF THE FLAG AND SUGGESTS THAT ANY
EFFORT TO PASS ANY LAWS TO OUTLAW FLAG
BURNING BE SET ASIDE FOR A LONG ENOUGH TIME *
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HB
Hubbard Broadcasting, Inc.
INC.
3415 UNIVERSITY AVENUE
SAINT PAUL, MINNESOTA 55114
STANLEY S. HUBBARD
President and Chief Executive Officer
June 28, 1989
The President of the United States
The White House
1600 Pennsylvania Avenue
Washington, D.C. 20500
Dear President Bush:
I think that my family and I are as patriotic as anyone. We believe in the United States of America,
and we pledge allegiance to the flag. However, in pledging allegiance to the flag, we are pledging
allegiance to a concept which goes far beyond the importance of the flag itself as a material object.
We believe that anyone who burns the flag is, to say the least, a "jackass" and such a person, like
any other person who engages in offensive behavior, should be derided and looked down upon by
his fellow Americans.
One of the most important principles which has guided the development of our country is the
freedom of speech and expression. We all know the old saying, "I may not agree with what you
have to say, but I will defend your right to say it." The same is true of the flag. If a person wants
to be so foolish as to buy an American flag and then burn it, that should be that person's privilege.
In this regard, we think the Court is absolutely_correct. The right to burn your private property,
whether that be the result of a whim or the result of a desire to communicate some kind of protest,
citizen. is, according to the decision of the Supreme Court, and ought to be, the right of every American
In addition, and not related to any Constitutional question, the Court has once again, we believe,
provided a service to the American people which will help to defuse radicalism. When Nixon was
forced from office, the point was made to the radicals that no one is above the law. Now, when
the Court affirms a radical's right to burn the flag, I believe in practical terms the Court is going to
defuse any effect that burning the flag might have had; and it is going to cause many would-be flag
burners to stop and reflect that perhaps their country is wonderful after all.
My suggestion is that any effort to pass any laws to outlaw flag burning be set aside for a long
enough time for reason to replace emotion.
The United States of America is the greatest country in the history of the world; and thank God it is
a country where we can fly the flag proudly if we wish or we can burn it if we want to be so
foolish.
Sincerely,
Stanley S. Hubbard
cle
THE WALL STREET JOURNAL THURSDAY. 1989
On the Flag,
The Justices Make
Dukakis's Mistake
By L. GORDON CROVITZ
One week after Supreme Court justices
ruled that burning the flag doesn't amount
Provocative speech - or provocative
Ironically. the justices may have misun-
to fighting words." a scrap outside the
symbolic speech thus does not get ab-
derstood how people would react to the
solute First Amendment protection. "Such
Arkansas state capitol proved them wrong.
burning of the flag partly because there
A fringe candidate for governor. Robert
interances are no essential part of any ex-
are SO few flag burners these days. The S:
McIntosh. was set to burn a flag until a
position of ideas. and are of such slight so-
nation was different in the 1969 of civil
group of onlookers rushed him. Auto shop
Tal alue as a step to truth that any bene-
rights and antiwar demonstrations. when 1
that may be derived from them is
owner Brett Keathley threw a punch at
more liberal court heard another case
outweighed by the social interest in
Mr. McIntosh. which gave state police the
colving flag burning. In that case. Street
and morality, the 1942 case held.
excuse to arrest both for disorderly con-
New York. the flag burner was freed be-
But Justice Brennan wrote that It would
duct. "If it causes me to be arrested. I'll
cause the court held that he was prose-
do this every time." Mr. Keathley said.
unreasonable to think anyone would be
cuted for his words. not his actions. By.:
Similar incidents occurred around the
incited by Gregory Lee Johnson's burning
the justices who thought he was convicted
it the flag at the 1984 Republican conven-
country on July 1. A melee following a left-
for burning the flag dissented. saying this
wing group's effort to burn the flag closed
10n. He said that burning the flag does not
was not constitutionally protected.
New York's Washington Square Park. Pro-
within that small class of fighting
Among the justices who thought laws
words that are likely to provoke the aver-
abortion activists in Minneapolis were at-
could protect the flag was liberal Chief
tacked after burning a flag. Veterans in Al-
,ve person to retaliation. and thereby
Justice Earl Warren. He wrote that "the
cause a breach of the peace'.
bany repeatedly knocked the lighter away
states and federal government do have the
The Brennan opinion assumed "No rea-
from a would-be flag burner.
power to protect the flag from acts of dese-
The broad public outrage since the
senable onlooker would have regarded
cration and disgrace.' Likewise. Justice
Johnson's generalized expression of dissat-
court ruling in Texas v. Johnson may
Hugo Black said that "it passes my belief
isfaction with the policies of the federal
mean the justices so miscalculated how
that anything in the federal Constitution
government as a direct personal insult or
Americans react that if they get another
bars a state from making the deliberate
flag-burning case they might come out the
an invitation to exchange fisticuffs." Actu-
burning of the American flag an offense."
ally. one reason no one tried to attack Mr.
other way. This is not because justices are
Interestingly. antiwar activist Tom Hay-
Johnson may have been that he was sur-
supposed to follow the polls or pander to
den. now a California legislator. last week
the majority. Instead, since their approach
rounded by police officers. who quickly ar-
voted for a constitutional amendment
in such cases is to balance free speech
rested him when he burned the flag.
against flag burning because such actions
with the likelihood of inciting a breach of
Chief Justice William Rehnquist's dis-
incite violence-and he should know.
the peace, the court's assumption that the
sent pointed out that states have upheld
There is a problem with a legal doctrine
laws against burning the flag because such
average American wouldn't be outraged by
that depends on what nine cloistered jus-
desecration is so inherently obnoxious that
someone torching Old Glory means the jus-
tices think makes the average American
it will naturally lead to a breach of the
tices erred as a matter of law.
fighting mad. The justices might have
Justice William Brennan's majority
peace. He argued that flag burning is the
been wiser to give more credence to the to
opinion acknowledged that the fighting
equivalent of an inarticulate grunt or roar
state laws and federal statutes that pro-
words doctrine means that the First
that. it seems fair to say. is most likely to
hibit desecration of the flag. laws written
be indulged in not to express any particu-
Amendment does not protect speech or
by legislators who think burning the flag
lar idea, but to antagonize others."
symbolic speech if the expression "is di-
amounts to fighting words. Whether or not
rected to inciting or producing imminent
Why did the majority of justices in the
a constitutional amendment is the proper
lawless action and is likely to incite or pro-
flag case. including conservatives Antonin
response, the fact of public outrage over
duce such action." He was bound by the
Scalia and Anthony Kennedy, misunder-
the flag decision is itself good evidence
stand how the "average American" views
unanimous Supreme Court opinion in 1942
that the justices got the law wrong.
that upheld the conviction of a demonstra-
the flag? It may be the same miscaluation
Michael Dukakis made when he underesti-
tor who had called a local marshal a "God
damned racketeer" and a "damned fas-
mated the Pledge of Allegiance. Or per-,
Mr. Crovitz is assistant editor o! the
cist." Chaplinsky v. New Hampshire said
haps the court confused the symbol with
Journal's editorial page.
that there's no constitutional protection for
what it symbolizes. In writing that the flag
"the lewd and obscene. the profane, the li-
deserves no protection from desecration,
Justice Brennan noted that the Founders
belous. and the insulting or 'fighting'
were not known for their reverence for
words-those which by their very utter-
ance inflict injury or tend to incite an im-
the Union Jack. This misses the point.
mediate breach of the peace."
The Texas law outlawed the burning of the
U.S. flag. not the Hammer and Sickle.