Justices Face Issue of Flag Burning as Symbol of Radical Dissent in U.S.

Gregory (Joey) Johnson, a 32-year-old Texan, is a member of the Revolutionary Communist Youth Brigade and proud of it. America, he says, is “a sick and dying empire,” and its flag “a symbol of international plunder and murder.”

Now the Supreme Court must decide whether the Constitution protects Johnson’s right to burn the flag he hates. The outcome will signal whether the court will tolerate radical political dissent in the United States.

During the latter part of the Vietnam War era, the justices ducked a chance to decide whether the First Amendment’s guarantee of freedom of speech includes the right to burn a flag as an act of protest.

Only a few years before, in the 1969 case of Brandenburg vs. Ohio, the justices had quietly adopted the free-speech standard first set forth in the 1920s by Justice Oliver Wendell Holmes Jr. Under this rule, Americans are free to speak and protest as long as their actions do not pose a “clear and present danger” to incite violence or disruption.

Full-Time Protester

Joey Johnson, the full-time protester whose case will test the court’s allegiance to that doctrine, is a self-described “Maoist” who admires rigid leftist regimes that permit no dissent. In a meeting with reporters, he said he preferred China and the Soviet Union in the years before their moves toward democracy and openness.

In 1984, with former President Ronald Reagan about to be nominated for a second term at the Republican National Convention in Dallas, Johnson organized a demonstration in the streets of Dallas to protest what he called the Administration’s “Rambo-mania mentality” and “mindless flag-waving.”

Chanting “America, the red, white and blue/We spit on you,” he and a small band of protesters poured lighter fluid on a flag that had been stolen from a bank building, lit it and watched it burn.

A Dallas police officer arrested Johnson for violating a Texas law that makes it a crime to “desecrate” a flag. He was convicted by a jury, fined $2,000 and sentenced to one year in jail.

That was just the beginning. Lawyers from the American Civil Liberties Union took up his defense and argued that the Texas law violated the First Amendment. They relied in part on a 1943 Supreme Court ruling striking down as unconstitutional state laws requiring schoolchildren to salute the flag each day.

It was this same ruling, in the case of West Virginia vs. Barnette, that last year’s Democratic presidential candidate, Michael S. Dukakis, cited to justify his veto of a Massachusetts law forcing teachers to begin each day by reciting the Pledge of Allegiance.

Dukakis was responding to Republican nominee George Bush, who had accused him of softness in his support of the pledge.

Bush went on to trounce Dukakis at the polls, but Johnson fared better in court. The Texas Court of Criminal Appeals, on a 5-4 vote, overturned his conviction last April and ruled that the state’s flag-burning law was an unconstitutional ban on “symbolic speech” and political protest.

‘Right to Differ’

“Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens,” the Texas court declared. “Therefore, that very same government cannot carve out a symbol of unity and . . . essentially license the flag’s use for only the promotion of governmental status quo.”

The state appealed, and the Supreme Court announced it would hear the appeal. Oral arguments are scheduled for March 21, and a decision is expected before the court’s summer recess.

Both California and the U.S. government have statutes similar to the Texas law. The California law, though rarely enforced, carries a maximum penalty of six months in jail and $1,000 fine for anyone who “knowingly casts contempt upon any flag of the United States or of this state by publicly mutilating, defacing, burning or trampling upon it.”

Last week, Los Angeles County prosecutors noted the state law--but stopped short of invoking it--when a CalArts student laid an American flag on the floor as part of an art exhibit. The exhibit was mounted in support of a similar display at the School of the Art Institute in Chicago, where angry demonstrators have occasionally shut down the gallery over the last two weeks.

The case (Texas vs. Johnson, 88-155) will force the justices to again confront the question of how much protection the Constitution gives to the nation’s harshest critics. The Supreme Court’s willingness to protect the right to criticize the government dates back only to the 1930s.

In 1919, for example, the court unanimously affirmed a 10-year prison sentence for labor leader Eugene Debs, a four-time Socialist candidate for President. His offense: a speech in Canton, Ohio, in which he expressed admiration for several “loyal comrades” who had been convicted under the 1918 Espionage Act of denouncing the World War I draft.

War Effort

Debs also told the workers they were “fit for something better than slavery and cannon fodder.” For this, he was convicted of “insubordination” and “obstruction” of the war effort.

Justice Holmes, writing for the court, upheld the conviction because the “natural and intended effect” of the speech “would be to obstruct recruiting.” A year later, while in prison, Debs got nearly a million votes for President.

Six months later, however, Holmes and Justice Louis D. Brandeis split away from the court majority and, in a series of memorable dissents, argued for a broader view of the right to free speech.

“The theory of our Constitution,” Holmes wrote, is “that the ultimate good desired is better reached by free trade in ideas.” Unless shown evidence of a “clear and present danger” to incite disruption, he held, the court should be “eternally vigilant against attempts to check the expression of opinions we loathe.”

Added Brandeis: “Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. Only an emergency can justify repression” of free speech.

But through the 1920s, the majority believed otherwise. The justices regularly upheld prison terms for radicals who published pamphlets calling for the overthrow of capitalism.

The tide turned in 1931, when the justices overturned 19-year-old Yetta Stromberg’s felony conviction under California law for having raised a Soviet “red flag” at a youth camp in the San Bernardino Mountains. The justices said that raising a flag--regardless of whose--is protected by the First Amendment.

Broadest Defense

In the midst of World War II, the court issued perhaps its broadest defense of the right to free speech. Facing mass demonstrations of patriotic zeal in Nazi Germany and Japan, several states passed laws requiring schoolchildren to salute the flag each day. Acting on an appeal from the Jehovah’s Witnesses, the justices in 1943 declared the laws unconstitutional.

During the Vietnam War protests, the nation again considered the limits of radical dissent. Although the Supreme Court avoided a decision on the act of flag-burning itself, it ruled 6 to 3 in 1974 to reverse the flag-defacing conviction of a college student in Seattle who had flown a flag from his apartment window with a peace symbol taped on it.

The court majority said this “pointed expression of anguish about the current domestic and foreign affairs of this government” was a protected form of protest under the First Amendment.

A sharp dissent was filed by Justices William H. Rehnquist and Byron R. White. The right to free speech “is not absolute,” Rehnquist wrote, and the state has an even more compelling interest in “preserving the flag as an important symbol of nationhood and unity.”

Rehnquist is now the chief justice, and he and White have been joined on the court by three appointees of former President Ronald Reagan--Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy.