Court Is Urged to Uphold Ban on Flag Burning

Attorneys for the Bush Administration urged the Supreme Court Monday to reverse what may have been its most controversial ruling of the last year and to uphold a newly passed law that bans burning or defacing the American flag.

The government should be permitted to protect the flag as one of those national symbols “special to us as a people,” U.S. Solicitor Gen. Kenneth W. Starr told the court, which appeared to contain a majority that is still skeptical.

Last June the high court ruled 5 to 4 in a Texas case that the Constitution’s guarantee of free speech included the right to burn a flag during a political protest. Seeking to meet that First Amendment argument, Starr said Monday that protesters are free to denounce the United States or its flag in the most vehement terms under the new law, so long as they do not defile “Old Glory.”

The decision striking down the Texas law set off a storm of controversy. President Bush proposed a constitutional amendment to overturn it and Congress took up the issue, eventually passing a law making it a crime for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.”

Monday, the Supreme Court heard oral arguments on a challenge to that new law under a special expedited schedule. A ruling is expected by July.

On the sidewalk outside the court building, demonstrators on both sides--separated by police--chanted slogans. They represented disparate views, ranging from the Revolutionary Communist Youth Brigade, whose members tried to hoist a red flag atop an elaborately carved lamppost, to Young Americans for Freedom, who held a large American flag and a sign that declared: “Flag Burning Is A Hate Crime.”

There were signs in the court’s chambers that the majority may not have been swayed by the government’s arguments in support of the new law.

One of the two conservatives who voted against the Texas law noted, for example, that many flags have been burned and defaced since last year’s ruling--but nearly all the incidents occurred in Eastern Europe during popular uprisings that toppled authoritarian communist regimes.

From East Germany to Romania, national flags have been trashed and burned by pro-democracy protesters. Even in Moscow’s Red Square on May Day, Kremlin leaders watched as angry marchers paraded by holding Soviet flags whose hammers and sickles had been cut out.

Citing such protests, Justice Anthony M. Kennedy--one of the two conservatives who voted against the Texas ban--suggested that defacing a flag has become “an internationally recognized form of protest.”

Justice Antonin Scalia--the other conservative who voted with the majority in the Texas case--also picked apart the government’s main argument in support of the new law.

The Texas law that was struck down made it a crime to deface a flag in a way that gave “serious offense” to an onlooker. By contrast, the new federal law makes it a crime to deface or burn a flag for any reason, except to retire a worn-out banner. The new law should be upheld, Starr said, because it is “content neutral.” That is, it does not seek to restrict “any particular message.”

Yet Scalia said that it seems to make no sense to say, as Starr’s argument implied, that someone would “mutilate, defile or deface” a flag because he wanted to show his respect for it. Rather, Scalia suggested, a protester who torches a flag is likely to have only one message, and “the message is ‘I hate America.’ ”

Thus, instead of being content-neutral, the new law tolerates “only one viewpoint” about the flag, Scalia said.

Justice Harry A. Blackmun, a liberal who voted with the majority last year, has been considered a possible swing vote this time because in a 1974 case he wrote a dissenting opinion suggesting that a total ban on flag desecration might be constitutional. But Blackmun has become more liberal on many issues since then and he said nothing during Monday’s hour-long arguments.

In last year’s decision, the court opinion spoke broadly of a constitutional right to dissent.

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable,” wrote Justice William J. Brennan Jr. for the court.

On Monday, radical lawyer William Kunstler, arguing in defense of the flag burners who tested the new law in Seattle and here in Washington, said that Brennan’s opinion last year meant the new law must be struck down also.

“Respect for the flag must be voluntary,” Kunstler said. “Once people are compelled to respect a political symbol, they are no longer free and the respect for it is diluted.”

When the new law was struck down as unconstitutional by federal judges in Seattle and the District of Columbia, the Justice Department appealed the case (U.S. vs. Eichman, 89-1433, and U.S. vs. Haggerty, 89-1434) directly to the high court. In response, the justices agreed to hear arguments quickly and rule before adjourning for the summer in July.

Brennan’s opinion last year was joined by Justice Thurgood Marshall, as well as by Scalia, Kennedy and Blackmun. If, as expected, those five join again to strike down the new federal law, the flag-burning issue will bounce back to Congress and possibly into the political arena this fall.

Republican leaders say that they will push for a quick vote on a constitutional amendment to protect the flag. If an amendment is approved by two-thirds of the Senate and House, it then would be sent to the state legislatures. Three-fourths would be required to ratify it for the amendment to take effect.

In other actions, the court:

--Refused to lift a Georgia judge’s order forbidding Operation Rescue anti-abortion activists from picketing within 50 feet of abortion clinics in Atlanta (Hirsh vs. Atlanta, A-752).

Though the 5-4 decision is not a ruling on anti-abortion picketing, it may signal how the justices view the issue. In past rulings, the court has said that police and judges may put limits on demonstrations. For example, protesters may not enter the Supreme Court building or picket on its steps, although they may voice their opinions from the street in front of the building.

A Georgia judge imposed strict limits on Operation Rescue activists after a series of anti-abortion protests and harassment dating back to July, 1988, when the Democratic National Convention was held in Atlanta.

--Took no action on a widely publicized appeal by the Hare Krishnas of a $5-million court judgment from Orange County (George vs. International Society of Krishnas Consciousness, 89-1398.).

At age 14, Robin left home and joined the Krishnas. She later contended that she was “brainwashed.” If a multimillion-dollar damage judgment is upheld, the Krishnas claim, they will have to sell off their temples in Los Angeles.

COURTROOM CALM--The quiet inside the Supreme Court contrasts sharply with swirling passions outside. A5