Earning the right to salute, or burn, the flag

It’s hard to fault fellow citizens who supported passage of the failed constitutional amendment to allow states to ban flag desecration. Flag burning is a distasteful act for many people because, as Senate Republican leader Bill Frist points out, “Countless men and women have died defending that flag.”

But this straightforward position is complicated by the fact that some of our soldiers who have put their lives in jeopardy in defense of our country oppose this amendment. For example, Sen. Daniel Inouye, D-Hawaii, a combat veteran and winner of the Medal of Honor, voted against it, citing his duty “to defend the constitutional right of protesters to use the flag in nonviolent speech.”

Or consider the Web site of Veterans Defending the Bill of Rights, an organization chaired by Marine Gary May, who lost two legs in Vietnam. May says, “As offensive and painful as flag burning is to me, I still believe that those dissenting voices need to be heard … The freedom of expression, even when it hurts, is the truest test of our dedication to the belief that we have that right.” This site conveys similar sentiments from other combat veterans, many of them wounded and highly decorated.

Other veterans may take a different view, but clearly these are men and women who have earned the right to be heard on this matter. Part of their message is that the issue of flag desecration is too complicated to be resolved merely by appealing to patriotism.

Its complexities are evident in the oral arguments that took place before the Supreme Court on March 21, 1989, in the case of Texas v. Gregory Lee Johnson. In 1984, Johnson was arrested for burning an American flag at a political protest in Dallas. He was charged with “desecration of a venerated object,” found guilty, and sentenced to a year in prison and a $2,000 fine.

Eventually his case reached the Supreme Court, where the justices weighed Johnson’s right to expression against the interests of the state of Texas in preserving the flag as a national symbol and in preserving the peace. In June 1989, the court found for Johnson by a 5-4 vote.

An edited version of the oral arguments was published in the June 1989 issue of Harper’s Magazine, and it makes for instructive reading. The care and precision with which the justices tweeze out the arguments are impressive. For example, Justice Antonin Scalia asks the attorney representing Texas how Johnson’s actions destroyed the symbolic nature of the flag. In fact, when someone desecrates a flag, its symbolic nature is actually strengthened, he argues, pointing out that Texas made the mistake of not only attempting to preserve a national symbol, but of also attempting to require respect for it. And that, he says, is a very different argument. Scalia, ordinarily considered a conservative jurist, eventually voted with the majority in support of Johnson’s right to expression.

The proposed flag-desecration amendment failed by such a small margin that it’s likely to come up again. But when it does, I hope our citizens and politicians will review the oral arguments of 1989, as well as the court’s finding in June of that year, including the dissenting opinions. These documents, all available online, take this issue to a depth that can’t possibly be achieved in the modern sound bite, but for an issue that gnaws away at our First Amendment rights, it’s worth the trouble.

Here’s Justice William Brennan, speaking for the court in 1989: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

What are the things that could destroy our republic? The erosion of the rule of law? Probably. The enervation of our military forces in dubious campaigns far from home? Possibly. Global warming? Definitely. Some guy in Dallas burning a flag? Not a chance.

Unfortunately, our attention to the last issue distracts us from paying enough attention to important issues like the first three. Let’s retain our faith in the Constitution, especially the First Amendment, by leaving intact our freedom to dissent as we see fit whenever we believe that it’s necessary.

(John M. Crisp teaches in the English Department at Del Mar College in Corpus Christi, Texas. Email jcrisp(at)delmar.edu.)