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Photo taken from deck of Warren's home.

Burning the American Flag

Written November 3, 1989

About that flag burning…

Gregory Johnson, the protester who took his case clear to the Supreme Court to defend his right to burn the American flag, is in the news again. This time, he’s upset because he was not arrested for again burning the flag of the United States of America. This is one very confused fellow — but then, we already knew that, didn’t we?

Hearing that he was at it again started me reminiscing about some of my thoughts concerning the Supreme Court’s decision. Their first mistake, of course, was in permitting this to be argued as a First Amendment issue. Burning the flag: this is “speech?” 

“Political expression,” they said. Speech-expression, expression-speech, same thing.

So, “expression” is protected as long as it’s politically inspired? Does this include hand (and finger) gestures — suitably politically motivated, of course? And if I or some other citizen were to “moon” the venerable justices on the steps of their Supreme Court building — strictly as a protest of their politics, mind you — this too is covered? Given the flag burning precedent, wouldn’t it have to be? Then what wouldn’t?

If an otherwise heretofore illegal act, uh…er…, “expression” becomes a “right” by virtue of being politically inspired, well, folks, better fasten your seat belts and return your tray tables to their upright, locked position; we’re heading into some turbulence. Imagine the possibilities. Aren’t terrorists the archetypal example of politically motivated persons? Are we going to give them the nod?

OK, let’s say for the sake of argument that this was in fact “speech.” Well, just what was he saying? It makes a difference, you know. Was he perhaps calling for the violent overthrow of the government of the United States of America? Was he saying, as the Iranians say when they burn our flag, “Death to America, death to the Great Satan?”

You may have gotten the impression from this decision that our supreme court justices are free speech absolutists; that would be a mistake. The court has long denied “first amendment” protection to certain kinds of speech. Obscenity is one such type. Commercial speech is another example. In fact, just days before the flag burning decision, the court ruled 6 – 3 in Todd Fox et al. v. Board of Trustees of the State University of New York, to uphold a SUNY ban on commercial activity on campus. In the so-called “Tupperware” case, several students had invited a salesperson to demonstrate Tupperware-like utensils in a dorm room. The salesperson was arrested for soliciting without a license and trespass. She lost. Commercial speech is not protected.

In a case from a bit further back, from the early 1940’s, the court upheld the banning of a handbill containing political speech. The handbill contained on one side a protest against city officials for refusing permission to run a business from a New York City pier and on the other side an advertisement promoting the business. In this case, we see that not only is commercial speech not protected but the existence of a commercial element was sufficient to uphold the ban despite the political content. Nasty stuff, that commercial speech.

Another kind of speech that is not protected is so-called “fighting words.” These are words that according to the court are “likely to provoke the average person to retaliation.” This might include racial, ethnic or religious slurs and perhaps just calling someone a S.O.B. I maintain that if in fact Gregory Johnson’s flag burning was “speech,” it was certainly “fighting words” — if the outrage of vast numbers of Americans is any indication. Indeed, the whole purpose of the burning was to outrage, to provoke, otherwise why bother burning the flag?

If a commercial element is sufficient to ban political speech, shouldn’t the provocation of “fighting words” be sufficient to also deny first amendment protection despite the “political” nature? Or is commercial speech so much worse than inciting to violence?

My point is that the Supreme Court could have easily, and justifiably upheld the ban on flag burning using the “fighting words” argument. But the court did not want to ban the divisive practice of flag burning. So they didn’t.

Yet, in United States v. O’Brien, 391 U.S. 367 (1968), The court upheld a prohibition on the burning of draft cards as political protest.

Summarizing: 

Burning the American flag as political protest: protected “speech.”

Burning a draft card as political protest: not protected.

Oh, the subtle nuances of constitutional law!

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