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Burning the Flag
The Great 1989 - 1990 American Flag Desecration Controversy
Robert Justin Goldstein
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Burning the Flag
The Great 1989 - 1990 American Flag Desecration Controversy
Robert Justin Goldstein
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"In 1989, the Supreme Court ruled that dissidents had a constitutional right under the First Amendment to burn the flag. During the Bush Administration, Congress passed the Flag Protection Act (FPA), and so doing reflected the broad spectrum of opinion that saw the flag as a sacred symbol of American freedoms. Robert Justin Goldstein's Burning the Flag thoughtfully draws on the disciplines of law, political science and history to analyze the controversy in all its dimensions."â London Review of Books"Goldstein has written a wonderfully comprehensive and highly readable history and analysis of the flag desecration debate in the US."âChoice
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Sous-sujet
PoliticsCHAPTER 1
THE PRE-1984 ORIGINS
OF THE AMERICAN FLAG
DESECRATION CONTROVERSY
The American flag played no significant role in American life until the Civil War. It was displayed only on federal government buildings and forts and on American ships at sea. Public schools did not fly the flag, and as the director of the Betsy Ross House in Philadelphia noted during the 1989â90 flag desecration controversy, âIt would have been unthinkable to fly an American flag at a private home. It simply was not done.â General display of the flag and popular familiarity with it were so rare that the first full-time American flag manufacturing company began operation only after the Mexican War of 1846â48 stimulated enough demand to make such a venture financially feasible.1
Only the outbreak of the Civil Warâbegun by the firing of Confederate troops upon the flag-bedecked Fort Sumter, South Carolinaâtransformed the American flag into an object of public adoration (although only, of course, in the North). According to historian George Preble, the flag then suddenly appeared everywhere, âfrom colleges, hotels, store-fronts, and private balconies,â and the demand for flags became âso great that the manufacturers could not furnish them fast enough.â In the South, however, the American flag became the object of scorn and hatred, and for the first time in American history, it became the widespread target of symbolic protest. The U.S. treasury secretary in 1861 ordered the summary execution of anyone attempting to haul down the flag in New Orleans, and in 1862 in that city a military courtâs death sentence for treason was executed against a man convicted of pulling down, dragging through the mud, and shredding a flag that had been hoisted over the federal mint.2
The newly found northern love for the flag continued after the Civil War, partly fostered by a series of patriotic historical commemorations such as the 1876 revolutionary centennial. But the flagâs growing popularity was not accompanied at first by any sense that it should be regarded as a sacred object or relic. The most common form in which the flag became increasingly visible in American life during the last third of the nineteenth century, in fact, was as a decorative accompaniment in the commercialization of a wide range of products, as the modern advertising industry developed amid the rapid postwar industrialization of the nation. For example, one 1878 advertisement depicted a large ham against the backdrop of a flag on which was printed across the stripes, âThe Magnolia Ham is an American Institution.â3
Origins of the Flag Protection Movement
Gradually, after 1890, what will henceforth be termed (as a form of shorthand for a loosely organized coalition of groups) the Flag Protection Movement (FPM) grew up to protest the perceived commercial debasement of the flag, which would allegedly degrade the significance of both the flag and patriotism among the general public. Thus the 1895 pamphlet that served as the FPMâs opening shot complained that the âtender sentimentâ properly associated with a âdecent useâ of the flag would be âdissipatedâ and âsadly marred when we see it shamefully misusedâ as a âcostume to bedeck stilt walkers, circus clowns, prize fighters and variety players or gaiety girls.â4
New threats to the flag were soon targeted, notably its perceived abuse by politicians and, especially after about 1900, the supposed threat posed by trade union members, immigrants, and political radicals who might use the flag to express symbolic political protest. Although politicians had printed their names, portraits, and slogans on the flag at least since 1840, in 1896 such âpoliticizationâ of the flag reached previously unknown heights when the campaign of Republican candidate William McKinley made his alleged love for the flag a central theme. Millions of flags and flag buttons were distributed, and a national Flag Day was announced in his honor to help develop the theme (strikingly similar to that of George Bush in 1988) that Republicans had a unique relationship to the flag, while the Democrats and their presidential candidate, William Jennings Bryan, were portrayed as posing a threat to the âAmerican way of life.â5
Not surprisingly, a few zealous Bryanites responded in scuffles in which flags were damaged. The dozen or so âflag desecrationâ incidents associated with the 1896 campaign reenergized the FPM and led to growing demands to ban placing any writing or pictures on the flagânot just advertising uses. Thus in pamphlets published in 1898 and 1902, leading FPM spokesman Charles Kingsbury Miller declared that the flagâs âsacrednessâ had been equally âencroached uponâ by the âgreat political parties and the janizaries of tradeâ and equally abused by âavaricious tradesmen and crafty politicians, who turn it into a campaign banner for rival political clubs, a mop for the floor of barrooms and other despicable uses.â6
Concern about perceived âmainstreamâ commercial and political abuse of the flag was the primary focus of FPM complaints until about 1900. Gradually thereafter, and especially after the twin 1917 developments of American intervention in World War I and the Bolshevik Revolution, the FPMâs concern shifted and increasingly focused on the alleged or potential use of the flag as a means of expressing political protest by political radicals, trade union members, and immigrants (who were often indiscriminately lumped together). In practice, however, instances in which the flag was physically damaged (as opposed to being the subject of verbal assault or, in the eyes of the FPM, insufficient reverence) to express political dissent during the 1900â1920 period, and indeed during the entire pre-Vietnam War era, were rare. For example, the only protest flag burning that appears to have occurred between 1900 and 1965 involved an eccentric socialist-pacific New York clergyman named Bouck White, who acted in 1916 on the eve of his trial for distributing a caricature that allegedly demeaned the flag. White was convicted under the New York State flag desecration law, for which the FPM had successfully lobbied, and received separate maximum sentences of thirty days in jail and $100 fines for both offenses.7
No doubt a major motivating force behind the FPM was a growing sense of American patriotism and nationalism as the United States became a major world industrial and political power following the Civil War and especially after 1890. However, both the composition and the rhetoric of the FPM clearly suggest that its leaders feared that âtheirâ traditional America was being threatened by newly emerging forces, such as big business, trade unions, political radicals, and ânew immigrants,â all of which were perceived as threatening the traditional social and economic order. The FPM was dominated by hereditary-patriotic groups like the Sons of the American Revolution (SAR) and the Daughters of the American Revolution (DAR) and by Union veteransâ groups such as the Grand Army of the Republic (GAR), whose leaderships were composed of the middle- and upper-middle-class elites that had traditionally dominated American society. As Wallace Davies, a leading historian of such groups, has summarized, these organizations felt that they had a special claim to leadership of the country, the hereditary-patriotic groups because of their âself-appointed rolesâ as âguardians of the American past and interpreters of its idealsâ and the Union veterans for having, in their view, âacquired a first mortgage upon the countryâ by virtue of their success in battle on its behalf.8
FPM leaders developed a campaign to turn the flag into a holy object kept âpureâ from contamination and put themselves forth as the most âtrue blueâ patriots. Thus FPM rhetoric was filled with references to the flagâs âsacrednessâ and purity, on the one hand, and to the threat of its pollution by its perceived enemies, on the other. For example, the national commander in chief of the GAR compared the flag to the âHoly of Holies,â and leading FPM pamphleteer Miller wrote of âthose three sacred jewels, the Bible, the Cross and the Flag,â and referred to âunscrupulousâ businessmen who had âpollutedâ the flag, whose âsacred folds were never designed to be defaced with advertisements of beer, sourkraut candy, itch ointment, pile remedies and patent nostrums.â DAR Flag Committee chairwoman Frances Saunders Kempster complained bitterly that the flag, which had been âchristened and hallowedâ by the âprodigal outpouring of noble bloodâ and should be âheld free and pure and sacred as the cross,â had been âcontaminated by the greed of gain.â Ralph Prime, the president of the American Flag Association (AFA), an organization created in 1897 to coordinate FPM efforts, attacked merchants and politicians who sought to âprostituteâ the flag, saying it should be maintained as a âsacred emblem, not to be used for any unholy or mercenary or partisan purposes,â but to be âkept pure by patriots.â9
In a 1900 pamphlet, Miller warned that the country had become the âinternational dumping groundâ for âhundreds of thousands of the lowest class of immigrantsâ who swelled the âpopulace who abuseâ the flag and posed a âmenace to the nation,â along with the âriotous elements of the labor organizationsâ and assorted and apparently interchangeable âSocialists, Anarchists, Nihilists, Populists, Tramps and Criminals.â AFA president Prime claimed in 1912 that those guilty of âmalicious outragesâ against the flag were invariably immigrants associated with âmeetings and demonstrations of labor movements.â10
Having identified the various elements that were perceived as threatening to pollute the sacred character of the flag and, by extension, of their vision of and influence in American society, FPM leaders vigorously lobbied at the state and federal levels for stringent laws to âprotectâ the flag against all forms of alleged âdesecrationâ (a term that by definition means the harming of sacred religious objects). According to Miller, flag protection laws were âessential to our welfare as a nationâ because disrespect for the flag âmay ultimately cause the government itself to tremble on its foundations,â and encouraged in the âleaders of mobs and misguided strikersâ a general âspirit of lawlessness and license,â rampant âoutlawry and hoodlumism,â and âanarchy and murderous labor riots.â According to the 1900 statement of the vice-president of a Spanish-American War veterans group, flag desecration was a âcrime more heinous in its ultimate effects than theft, arson or murder, as it strikes at the root of law, order and government.â11
Fortunately, according to FPM leaders, such massive and horrendous threats to the stability of American society could be quickly and easily lanced by simply outlawing flag desecration and fostering respect for the flag. Thus former New York congressman Cornelius Pugsley told a 1923 Flag Day celebration: âNo rallying point should be so effective to combat evil and dangerous tendencies in our national life than respect for our flag and our country.â Frances Saunders Kempster told the DAR in 1907 that flag protection legislation would deliver alike to the âillogical and visionary enthusiast,â the âglib-tongued, blatant demagogue,â the âcrafty schemer,â and the âmalignant fomenter of seditionâ the message to âCease! Cease!â12
Early State Flag Desecration Laws and Cases
Between 1897 and 1932, lobbying by the FPM and its supporters succeeded in obtaining passage of flag desecration laws in all forty-eight states; thirty-one states acted between 1897 and 1905 alone. The laggards were mostly former Confederate states, where the memories of the Civil War and Reconstruction dimmed passion for the American flag, at least until the nationalistic fervor stirred up by World War I took hold. Southern opposition in Congress, at least partly based on the statesâ-rights grounds that flag protection was a local matter, appears to have been largely responsible for the failure of flag desecration legislation on the national level until 1968 (although flag protection bills did pass one house of Congress on nine different occasions between 1890 and 1943).13
Although the state flag desecration laws varied somewhat, most of them were based on a model bill published by the AFA in 1900 and therefore had basically similar provisions. In short, the laws outlawed attaching anything to or placing any marks on the flag, using the flag in any manner for advertising purposes, or physically or even verbally âharmingâ flags in any way, including, typically, âpubliclyâ mutilating, trampling, defacing, defiling, âdefying,â or casting âcontempt,â either âby words or act,â upon the flag. The laws generally defined âflagâ as anything even remotely resembling the American flagâall objects âmade of any substance whateverâ and âof any sizeâ that âevidentlyâ purported to be either the American flag or its representation or included the flagâs colors and the âstars and the stripes in any number,â such that a person seeing it âwithout deliberation may believe the same to representâ the flag. Most state flag desecration laws provided maximum penalties of thirty days in jail and a $100 fine, but a few were considerably more harsh, such as the World War I-era laws passed in Texas and Montana, which contained maximum sentences of twenty-five years in jail.
The earliest state flag desecration laws were quickly challenged by adversely affected commercial interests as illegally restricting property rights. Although a series of local and state court rulings between 1899 and 1904 seemed on the verge of paralyzing the FPM by upholding such claims, in 1907 the U.S. Supreme Court, in the case of Halter v. Nebraska, upheld Nebraskaâs law in sweeping terms that made clear the futility of any further immediate legal challenges. In a case involving selling bottles of âStars and Stripesâ beer with pictures of flags on the labels, the Court declared that the state was entitled to restrict property rights for the valid and worthy purpose of fostering nationalism. Although the ruling did not address free speech questions (which had not been raised by the defendants), the ruling was so broadly worded that the Court clearly would have rejected any such position, especially because before 1925 the Court consistently refused to extend First Amendment rights to individuals who challenged state, as opposed to federal, laws.
The Halter decision was filled with patriotic oratory, declaring, for example, that âevery true American has not simply an appreciation but a deep affectionâ for the flag and that, as a result, âit has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.â The Court clearly endorsed the basic orientation of the FPM, declaring that advertising which used the national emblem tended âto degrade and cheapen the flag in the estimation of the people, as well as to defeat the object of maintaining it as an emblem of national power and honor,â and that âlove both of the common country and of the State will diminish in proportion as respect for the flag is weakened.â14
Because the Supreme Court did not hear another flag desecration case after its 1907 Halter ruling until 1969, during the interim period the constitutionality of flag desecration laws was considered beyond review by the lower courts. During these years, just as the rhetoric of the FPM shifted increasingly away from targeting perceived âmainstreamâ commercial and political abuses of the flag toward focusing on the supposed desecratory words and acts of perceived political malcontents, post-Halter flag desecration prosecutions almost invariably targeted those who were viewed as motivated by political dissent. Thus, virtually all of the Pre-Halter prosecutions that could be uncovered involved alleged commercial misuse of the flag, while of the total of about fifty-five flag arrests uncovered between 1907 and 1964, about forty-five clearly involved perceived political dissent.15
The overwhelming focus of post-Halter flag desecration enforcement on incidents with political significance is further highlighted by the clustering of cases around the periods of World War I and the postwar Red Scare and World War II, which were times of intensified patriotic-nationalistic fervor and decreased tolerance for dissent. Thus about thirty-five of the forty-five politically related flag desecration arrests between 1907 and 1964 occurred during 1914â20 and 1939â45. Almost half of these incidents involved oral disrespect for the flag, with the largest single cluster of such prosecutions occurring during World War I. In apparently the first verbal flag desecration case considered by a state supreme court, in 1918 the Kansas high court affirmed the conviction of a man who, while in a blacksmith shop, had expressed what the court termed âa very vulgar and indecent use of the flag.â In 1942, the Arkansas Supreme Court upheld a similar conviction in the case of a ma...