Judge Rules Flag Protection Act Unconstitutional

A federal judge in Seattle paved the way Wednesday for another Supreme Court clash over flag burning by striking down as unconstitutional the law enacted by Congress last fall forbidding any desecration of the flag.

The ruling, by U.S. District Judge Barbara Rothstein, grew out of test case filed by the Center for Constitutional Rights. The center won a victory in the Supreme Court last June, when the high court ruled that flag burning is protected under First Amendment guarantees of free speech.

Congress then attempted to circumvent the June ruling by passing the Flag Protection Act, hoping the newly worded law would be deemed constitutional if challenged.

But Rothstein ruled that the new law, which went into effect in October, also failed to meet the constitutional test.

“Burning the flag as an expression of political dissent, while repellent to many Americans, does not jeopardize the freedom which we hold dear,” Rothstein said in a 16-page ruling. “What would threaten our liberty is allowing the government to encroach on our right to political protest.”

Under a provision of the Flag Protection Act, an appeal of the case can go directly to the Supreme Court. It remains unclear whether the Supreme Court would make a special exception to its normal waiting period and hear the case during its current argument calendar, which ends in April.

Last June, the high court voted 5 to 4 to overturn a Texas law that was used to convict a protester who burned a flag. The court said the flag burning was a permissible form of expression under the First Amendment’s protection of free speech and political dissent. When the ruling set off outrage across the nation, President Bush proposed an amendment to the Constitution to overturn the decision. But congressional Democrats balked, arguing instead that the decision could be reversed by law.

The Texas law had made it a crime to burn a flag in public if someone witnessed the incident and was offended by it. Attorneys working for Senate Democrats reasoned that a ban on flag burning for any purpose might be deemed constitutional by the high court.

But other lawyers, including Bush Administration officials, were skeptical and have contended the new law will also be struck down by the high court. If the justices were to overturn the new law, Democrats and Republicans in Congress have said they would then move to amend the Constitution to ban flag burning.

The day the new law went into effect, Oct. 28, a number of people set out to challenge it with public flag burnings. In the Seattle case decided Wednesday, the defendants were Mark Haggerty, Jennifer Campbell, Darius Strong and Carlos Garza. The four burned a flag removed from a pole at a Seattle post office.

Attorneys for the Center for Constitutional Rights, fresh from winning a favorable ruling in Seattle, will argue the same issue today in a district court in Washington, D.C., in a case involving three people who burned flags on the steps of the U.S. Capitol.

If the Supreme Court again upholds flag burning as a right of free speech, that will almost certainly renew calls from the Bush Administration, among others, for a constitutional amendment.

In the Seattle case, the defense noted in court that freedom fighters in Romania who cut out the center of their flag to protest their oppressive regime were glorified by the U.S. government.

Addressing that argument, Judge Rothstein wrote: “This is an inspiring time for those of us who treasure freedom. . . . The freedom of speech enshrined in our First Amendment is the crucial foundation without which other democratic values cannot flourish.”

William Kunstler, the New York lawyer who argued the case for the defendants in Seattle as well as the Texas case that led to the earlier Supreme Court decision, contended that the flag “is not an icon. It’s not a religious symbol. It is the symbol of the United States. It’s a symbol of good and it is a symbol of bad, and people ought to be able to use it to protest the bad.”

The Supreme Court’s original ruling on the flag burning issue last year was considered somewhat surprising because two conservative appointees of former President Ronald Reagan--Antonin Scalia and Anthony M. Kennedy--joined with three liberals to form the majority. When the decision written by the court’s liberal leader, Justice William J. Brennan Jr., was announced, Scalia said nothing. Kennedy wrote a concurring statement saying that while it was an agonizing decision, it was mandated by the clear command of the First Amendment.