Obnoxious It May Be, But It’s Still Expression : Flag-Case Court Built on Harlan’s Insight

John M. Harlan, who served on the Supreme Court from 1955 to 1971, was one of the most respected and admired judges of our time. Because of his strong analytical powers and superb craftsmanship, and what many regarded as his principled approach to constitutional decision-making, he was often called a “lawyer’s lawyer” or a “lawyer’s judge.”

Moreover, because he usually gave great deference to governmental interests and on more than one occasion scolded his Warren Court colleagues for their “judicial activism” and “result-orientation,” he became the darling of many conservatives.

Nevertheless, 20 years ago in a case called Street vs. New York, Justice Harlan wrote the opinion that foretold--indeed, I would say, dictated--the result in Texas vs. Johnson, the Supreme Court flag-desecration case that has touched off a patriotic storm.

On hearing a news broadcast that civil- rights leader James Meredith had been shot by a sniper in Mississippi, Sidney Street, himself black, took his still-folded flag to a New York street corner where, in the presence of a small group, he set it on fire, shouting: “If they did this to Meredith, we don’t need an American flag.” New York law made it a crime “publicly (to) defile or defy” or “cast contempt upon” an American flag either by word or act.

Harlan could think of only four governmental interests that might conceivably be furthered by punishing Street. After carefully considering each of these interests, the justice concluded that none of them could constitutionally justify Street’s conviction:

--As for an interest in deterring the defendant from inciting others to commit unlawful acts, Street’s words “amounted only to somewhat excited public advocacy of the idea that the United States should abandon, at least temporarily, one of its national symbols.”

--As for an interest in protecting the defendant from provoking others to retaliate physically against him, thereby causing a breach of peace, Street’s remarks were not so inflammatory as to come within that “small class of ‘fighting words’ likely to provoke the average person to retaliation.”

--As for an interest in protecting the sensibilities of passers-by who might be shocked by the defendant’s words about the American flag, “any shock effect on defendant’s speech must be attributed to the content of the ideas expressed.” And “it is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”

--Finally, as for an interest in ensuring that the defendant showed proper respect for our national emblem, “the constitutionally guaranteed ‘freedom to be intellectually diverse and contrary’ and the ‘right to differ as to things that touch the heart of the existing order’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.”

Because the New York law involved in the Street case had been applied in such a way as to permit the defendant to be punished merely for speaking contemptuous words about the flag, Harlan did not have to specifically address the question whether a person could be punished for physically destroying the flag rather than for uttering insulting words about it. But Harlan’s consideration and rejection of the various government interests that might conceivably have justified Street’s conviction seem to apply with equal force to someone prosecuted for destroying the flag as a form of protest.

Chief Justice William H. Rehnquist would not agree. Dissenting in Johnson vs. Texas, he maintained that “flag-burning is the equivalent of an inarticulate grunt or roar.” The trouble with that view is that it is unsupported by the facts of the case.

Gregory Johnson’s flag-burning occurred in the context of an organized demonstration during the 1984 Republican National Convention and after he and his cohorts had distributed literature and made speeches protesting the policies of the Reagan Administration and certain Dallas-based corporations. While the flag was burning, the protesters chanted, “America, the red, white and blue, we spit on you.” Under the circumstances, there can hardly be any doubt that the defendant intended to convey a particular message and that the message was understood by those who viewed it. Johnson may be obnoxious, but he was not inarticulate.

His conduct was no less imbued with elements of communication than Street’s protest. Nor was Johnson’s protest any less a form of expression than the conduct of a group of angry citizens who gathered on the steps of the Supreme Court to burn a mock robe of those worn by the justices.

Johnson could have expressed the bitter dislike of his country--and the burners of the judicial robe could have expressed their bitter dislike of the way the Supreme Cout decided Johnson’s case--in more tasteful and less emotional ways. But they did it their way. The First Amendment permits, and ought to permit, them to do so.

As Justice Harlan said in another First Amendment case (one protecting the right of a person to inform the public of the depth of his feelings against the Vietnam War and the draft by wearing a jacket bearing the plainly visible words F--- the Draft):

“We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.”