Justices Will Rule if Flag-Burning Is Permissible

Times Staff Writer

The Supreme Court said Monday that it will decide a question mirroring the patriotism debate of the current presidential campaign: Does the American flag deserve reverence from all citizens or does the Constitution protect the right to differ, even to the extent of burning the flag?

The high court’s answer, which can be expected next spring, will indicate how far the five-member conservative majority will go in tolerating radical dissent in the nation.

The court agreed to rule on the case of a Dallas man who burned a flag during a protest outside the 1984 Republican National Convention. A Texas jury convicted the man, Gregory Johnson, and fined him $2,000 for violating a state law that makes desecration of the flag a crime.

First Amendment Cited


But with the help of attorneys from the American Civil Liberties Union, Johnson was cleared by a state appeals court on grounds that his protest was protected by the free-speech guarantee in the First Amendment. That ruling is now being appealed by the Texas attorney general’s office.

The arguments echo those in the presidential campaign debate over Democratic nominee Michael S. Dukakis’ veto, as Massachusetts governor, of state legislation requiring teachers to lead their classes in the Pledge of Allegiance.

GOP nominee George Bush has cited the veto repeatedly in speeches as evidence that Dukakis is too liberal, declaring that such a requirement is not too much to ask of Americans.

Dukakis, in defending his action, has cited a landmark Supreme Court opinion in 1943 that said the government may not compel a citizen to salute the flag. Bush’s stand, Dukakis countered, shows that he does not appreciate the Constitution and its Bill of Rights.


Same Opinion Used

The same 1943 opinion on patriotism and free speech was cited by the Texas appeals court in throwing out the flag-burning conviction now before the high court.

James Harrington, a lawyer with the Texas Civil Liberties Union, said Johnson’s actions were precisely the kind that should be protected by the First Amendment--peaceful and political.

He described Johnson and his friends as “punk anarchists” who despise the government and big business.

“It seems to be OK for some people like Oliver North to use a flag to get across a political message. But, because they don’t like Johnson’s message, they’ve made it a crime,” Harrington said in an interview. “A strong democracy should be able to tolerate this kind of dissent, as long as it is not violent.”

State of Texas attorneys seeking to reinstate Johnson’s conviction have told the Supreme Court that the state law was needed to “preserve the flag as a symbol of national unity.”

Band of Protesters

The court record says a small band of protesters, including Johnson, held up a flag and chanted: “America, the red, white and blue, we spit on you.” Then, they poured lighter fluid on the flag and ignited it.


“Johnson’s act of publicly burning a United States flag clearly constitutes conduct which is not entitled to First Amendment protection. The fact that Johnson was a political protester does not cloak him with immunity from prosecution,” the state said in its petition to the court.

The Supreme Court, though it has ruled on patriotism issues, has not ruled precisely on whether the First Amendment prevents convicting a demonstrator for burning the flag. In previous decades, however, the court has given wide latitude to political protesters.

In 1974, the court threw out the conviction of a college student from Seattle who taped a peace symbol onto a flag. He had been found guilty of Washington’s law making it a crime to deface the flag. On a 6-3 vote, the justices said this violated his free-speech rights.

‘Symbol of Nationhood’

But Justice William H. Rehnquist wrote a dissent, joined by Justice Byron R. White and then-Chief Justice Warren E. Burger. The flag is “an important symbol of nationhood and unity” that the state may protect, Rehnquist said.

Arguments in the flag-burning case (Texas vs. Johnson, 88-155) are scheduled for March.

Meanwhile, the high court turned down the appeal of the first man convicted of espionage for leaking intelligence information to a news organization. The court action is significant, news media lawyers say, because the case (Morison vs. United States, 88-169) raises the specter that the government could severely prosecute employees who leak national security information to the press.

In 1985, Samuel Loring Morison, an employee of the Naval Intelligence Support Center, was convicted of espionage and stealing government property for sending secret photographs of a new Soviet aircraft carrier to Jane’s Defense Weekly in London. The photos, taken by a U.S. spy satellite, were published by Jane’s and were picked up by news organizations around the world.


Fingerprint Evidence

Morison, grandson of eminent naval historian Samuel Eliot Morison, at first denied that he stole the photos--marked “Secret"--from the desk of a colleague. But, when faced with fingerprint evidence, he admitted the theft but said he intended only to alert the world to the Soviet naval buildup.

At his trial, attorneys for Morison argued that the Espionage Act of 1917 was intended only to attack “classic spying,” in which secret information is given to foreign agents. But the judge and an appeals court said the language of the law was clear: It is a crime for a government employee to give away sensitive defense information that “could be used to the injury of the United States or to the advantage of any foreign nation.” Giving the photos to the press, rather than a foreign government, does not “immunize” the thief, the appeals court said. Morison is serving a two-year prison term.

Libel, Vaccine Cases

In other actions, the court:

--Agreed to decide whether a federal appeals court must carefully examine libel judgments against newspapers. When a small Ohio newspaper reported that a lawyer running for a municipal judgeship may have engaged in “dirty tricks” to smear the incumbent, the lawyer sued. A jury concluded that the report--though apparently accurate--was printed with “actual malice” because the paper’s editorial page endorsed the incumbent judge. It awarded $200,000 to the lawyer. In its appeal, the newspaper argues that an appeals court should have intervened and rejected the jury’s conclusion (Harte-Hanks Communications vs. Connaughton, 88-10).

--Refused to block a state court lawsuit seeking $10 million in damages from the makers of the whooping cough vaccine. Lawyers for Lederle Laboratories said the federal courts should intervene to protect the makers of vaccines from state court suits because the federal government has a stake in immunization campaigns. The action clears the way for a trial in Virginia on allegations that the vaccine caused brain damage in an infant (American Cyanamid vs. Abbot, 88-330).