Originating with a 1984 Dallas flag burning, the flag desecration issue became one of the most expensive political disputes of all times. The proposed constitutional amendment took up more time than any other issue in the 1989-90 Congress with more than 100 hours of floor debate, a dozen days of public legislative hearings, thousands of hours of members' and staff time and more than 400 pages filled in THE CONGRESSIONAL RECORD. In the end, the right to desecrate the flag for purposes of political protest was legally established, and the country continued to exist more or less as before. Much ado about nothing, indeed.
Goldstein's BURNING THE FLAG is a wonderful example of how both the press and the political leadership can become more consumed with symbols than with any policy substance. Their entrancement with flag desecration resulted in divisive media "mongering" about a nonissue rather than tackling of any real problems.
He begins with a history of patriotism for the American flag. Symbolic patriotism was almost nonexistent until the 1896 William McKinley presidential race; a growing sense of US patriotism and nationalism following the Civil War motivated him to use the flag as the campaign theme. The movement was dominated by patriotic groups like Daughters of the American Revolution who filled their rhetorical speeches with notions of the sacredness and purity of the American flag.
By 1932, all 48 states had passed some sort of flag desecration law and some states were terribly harsh; 25 years in jail was the maximum sentence for violators in Texas and Montana. These laws were challenged, the most well known challenge occurring in HALTER V. NEBRASKA (1907). This case involved the selling of "Stars and Stripes" beer with flag pictures on the label. The Court gave the states power to restrict their sale in the interest of promoting nationalism, and then refused to examine flag desecration cases on the basis of free speech rights again until 1969.
But arrests were made, usually on the basis of insufficient patriotism. Most of the arrests occurred during World War I, the Red Scare and World War II, times of heightened nationalistic fervor. The most extreme case involved a protester refusing to pay proper reverence to the flag; after refusing to kiss a flag, E.V. Starr was sentenced to 10 to 20 years at hard labor. The most frequent cases involved Jehovah's Witnesses who refused to salute the flag on the basis of their religious convictions; mobs, often acting with official approval or even official assistance, physically attacked group members.
The issue died down until April of 1967 when a flag was burned in Central Park in New York during a massive antiwar demonstration. This widely publicized burning triggered public demands for a punitive law aimed at suppressing desecration. Flag burning had become associated with antiwar opposition and the emergence of the "counterculture." The desecration controversy, not coincidentally, peaked during 1967-1974, the years of greatest American involvement in the Vietnam War. In response to the controversy, the Federal Flag Desecration Law was passed in 1968. Though it was meant to alleviate the confusion as to what action was protected under the Constitution, it failed to actually do so. The problem was the definition of symbolic speech. The Court had ruled in STROMBERG (1931) that symbolic speech (e.g., expression that was neither verbal nor written) could be protected by the First Amendment and by 1970, the Court had accepted that symbolic speech could include the right to picket in labor disputes, march in demonstrations, burn draft cards, and wear black arm bands as protest. But the Supreme Court had also created some deep confusion (in US V. O'BRIEN) as to how much protection symbolic speech should receive, as opposed to that of oral and written expression. In short, governmental regulation would be upheld if it was "unrelated to the suppression of free expression."
JOHNSON would make it clear that all politically expressive flag desecration was protected by the First Amendment because outlawing such conduct was clearly suppressive. In response, Congress would enact the Flag Protection Act of 1989 which the Court would immediately rule (in EICHMAN) was a violation of the First Amendment.
The controversy began in August 1984 at a protest rally against the planned presidential renomination of Ronald Reagan by the Republican National Committee. After the protesters burned the flag, Gregory Lee Johnson was charged under the Texas law with desecrating a "venerated object." One of the more interesting bits of information in this book outlines the real reason this case received the media attention that it did; two weeks after the case was granted cert. by the Court, presidential candidate George Bush made the flag a major campaign issue when he criticized Dukakis for an obscure veto he made while governor of Massachusetts. The law would have required all public school teachers to lead daily classroom recitations of the Pledge of Allegiance to the flag. Bush, behind in the polls, used the veto to impugn Dukakis's patriotism and a literal media feeding frenzy followed.
One of the first sentiments that comes to mind upon reading this lengthy book is Oliver Wendell Homes's famous statement that the real test of protecting free speech is society's willingness to tolerate the "expression of opinions that we loath." Goldstein does a very good job at pointing out the hypocrisies of the American populace with regard to free speech. For example, he points out that directly after the Court granted certorari in the JOHNSON case, Salman Rushdie was condemned to death by Iran's Ayatollah Khomeini for his alleged blasphemy of Islam in his book THE SATANIC VERSES. Americans jumped firmly and quickly to Rushdie's defense, claiming the right of the individual to express unpopular views. Yet they also demonstrated their lack of tolerance (not to mention their hypocrisy) to this very issue by firmly renouncing Johnson's act of burning the American flag. Further, Goldstein points out that President Bush's support of a constitutional amendment forbidding flag desecration sought to preserve a symbol of freedom by destroying part of the substantive freedom that he wished to honor symbolically.
Shortly after the congressional defeat of the constitutional amendment in June 1990, the flag desecration issue would virtually disappear from the national stage. In fact, David Souter was never even asked about his views on flag desecration during his successful Senate confirmation hearings to the Supreme Court, a surprising omission since it was the Court that encouraged the debate in the first place. Further, the Court would firmly refuse to reopen or reconsider its ruling on the subject; they refused to hear appeals from lower courts that had vacated flag-desecration prosecutions on the basis of the new precedent. Finally, while critics of the Supreme Court's ruling had predicted that the JOHNSON decision would allow flag burnings to increase in number, actually about the same number of incidences that could be broadly construed as flag desecration cases to express political protest were reported both pre- and post-JOHNSON.
The most amazing thing about this whole story was aptly expressed in the words of one political activist: "What a fuss about some minor nut burning the flag." Goldstein is right on target in concluding that the issue was encouraged by media sensationalism, motivated by cynical political considerations and pandered to a responsive audience. Readers will also share the author's frustration with the American public generally; while the JOHNSON ruling demonstrated that Americans are apparently full of support and pride for their country, their responsee ultimately reflected a lack of understanding about the nature of our Bill of Rights.
The study's most serious weakness, in my judgment, is the author's failure to compare American attitudes toward the flag with public attitudes towards the flag in other countries. At the least, instead of the lengthy explanation of the JOHNSON case at the state court level, it would have been intriguing for some analysis on the other flag controversies raging in this country (e.g., debate over the Confederate battle flag) with regard to our iconic flag symbolism. To wit, since most of the controversy over the Confederate battle flag has taken place during the 1990s, was the JOHNSON case the impetus? In many ways, the argument over the Confederate flag has mirrored the American flag desecration controversy; defenders praise it as a symbol of honor and heritage, those who wish to ban it see it as symbolic of evil and oppression. It is unfortunate that Goldstein does not analyze the similarities between the national flag desecration controversy and that of the Confederate battle flag with detail; it would have made for a more enduring, enlivened debate.
Further, the author could have written to a larger audience by examining this controversy in light of other research that examines the policy making propensities of the Court. For example, an analysis along the lines of Rosenberg's THE HOLLOW HOPE or Epstein and Kobylka's THE SUPREME COURT AND LEGAL CHANGE would have given this book a bit more context and depth. It seems reasonable to conclude that the Court instigated policy on the issue by putting the issue on the agenda in the first place. Unfortunately, there is no analysis on this issue.
Even so, Goldstein has produced an eloquent, clearly articulated and thoughtful analysis one of the most expensive political disputes of all time.
U.S. V. EICHMAN, 496 U.S. 310 (1990)Epstein, Lee and Joseph F. Kobylka. 1992. THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY. Chapel Hill, NC: The University of North Carolina Press.
HALTER V. NEBRASKA, 205 U.S. 34 (1907)
MINERSVILLE SCHOOL DISTRICT V. GOBITIS, 310 U.S. 586 (1940)
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
Rushdie, Salman. 1989. THE SATANIC VERSES. New York: NY: Viking Press.
STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931)
TEXAS V. JOHNSON, 491 U.S. 397 (1989)
U.S. V. O'BRIEN, 391 U.S. 576 (1968)