The Supreme Court ruled Monday that Congress may not make it a crime to burn an American flag as an act of protest, renewing impassioned efforts for a constitutional amendment to protect the flag.
Speaking for the court, gravel-voiced, 84-year-old Justice William J. Brennan Jr. said that although burning a flag may be “deeply offensive” to most Americans, “the bedrock principle underlying the First Amendment . . . is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Of course, the government may prosecute someone who steals a flag from a pole and burns it, charging theft and destruction of government property. But the Constitution does not permit the government to prosecute someone who burns his own flag, the court said.
Last year, the court set off a political firestorm with a 5-4 decision striking down an anti-flag-burning law in Texas. But, without flinching, the high court by the same 5-4 margin struck down a new law passed by Congress last year because it also violates the Constitution’s guarantee of freedom of speech.
The four dissenters on the high court denounced their colleagues for upholding flag burning but they also appeared to take a shot at President Bush and other politicians who have made use of the emotional issue.
The integrity of the flag has been tarnished, they said, “by those leaders who seem to advocate compulsory worship of the flag even by individuals it offends, or who seem to manipulate the symbol of national purpose into a pretext for partisan disputes about meaner ends,” wrote Justice John Paul Stevens. His dissent was joined by Chief Justice William H. Rehnquist and Justices Byron R. White and Sandra Day O’Connor.
When the court struck down the Texas law last year, President Bush and many in Congress urged a constitutional amendment to protect the flag. However, members of Congress opposed to tampering with the Constitution struck a compromise and passed the Flag Protection Act of 1989.
Although President Bush argued that the new anti-burning law was no more likely to pass Supreme Court muster than the Texas law, he agreed to wait and see how it would resolve the issue.
Now that the court’s opinion on the Flag Protection Act is in, the President said he is once again ready to lead the charge for a constitutional amendment.
“I’ve not in any way pulled back from my conviction that that’s what we need,” Bush told reporters after hearing of the court’s decision.
A constitutional amendment must be approved by two-thirds of the House and the Senate and by three-fourths of the state legislatures. The Bill of Rights--the first 10 amendments to the Constitution--was approved by Congress in 1789 and ratified by the states in 1791. It has not been amended since.
On Capitol Hill, House Speaker Thomas S. Foley (D-Wash.) and Senate Majority Leader George J. Mitchell (D-Me.) said that they oppose amending the Constitution over the flag issue, but Republican leaders said that they would press for a vote.
In Monday’s Supreme Court decision, the key votes for the majority again came from two Ronald Reagan appointees: Justices Antonin Scalia and Anthony M. Kennedy. Although generally conservative on social and civil rights issues, Scalia and Kennedy have protected free speech in political matters.
In this case, government lawyers maintained that the flag should be off-limits to protesters because it is a “national symbol.” But Kennedy noted during court arguments last month that the recent political upheavals in Eastern Europe have shown flag desecrations to be “an internationally recognized form of protest.”
Still, Brennan’s sweeping comments about protecting “offensive” expressions should not be read to mean that the court will quickly reverse the prosecution in Florida of two “rap artists” for performing songs whose lyrics were declared obscene. Since 1957, the Supreme Court has taken the view that obscene expressions are not protected by the First Amendment. Though the court’s liberals believe that obscenity should not be prosecuted, Scalia and Kennedy have shown no willingness to join them on that point.
If Monday’s ruling shows anything, it is that the court is inclined to ignore political pressure.
Privately, several justices expressed surprise at the intense reaction to their ruling last summer in Texas vs. Johnson. Some legal experts recently had speculated that one or more justices might switch votes this time.
Those experts had argued that the conservatives might be swayed by the strong Republican opposition to the flag-burning, while the liberals might want to head off the threatened constitutional amendment. In fact, however, none of the justices switched positions.
The legal arguments put forth by Congress and the Justice Department also swayed no one. The Texas law struck down last year made it a crime to burn a flag in a manner that would “seriously offend” a bystander. Seizing on that clause, congressional sponsors of the new law said that their measure was different because it totally banned flag burning, regardless of its impact on bystanders.
The law said that anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground or tramples upon any flag of the United States” could be fined and sent to prison for one year. The only exceptions were for the disposing of a worn or soiled flag. Attorneys for the government argued that the new law was an attempt to protect the flag, rather than to punish those who are not patriotic.
Brennan quickly dismissed this distinction. The new law “still suffers from the same fundamental flaw” as the Texas law, he said, because it makes it a crime to engage in an offensive form of political protest.
He questioned whether destroying a flag necessarily harms the flag, the nation’s symbol. “For example, the secret destruction of a flag in one’s own basement would not threaten the flag’s recognized meaning,” Brennan said, although it would violate the 1989 law.
The latest case began just hours after the new federal law took effect on Oct. 28, 1989. Radical protesters tested the law by publicly burning flags at demonstrations in Seattle and on the Capitol steps here. They were arrested and charged with violating the new law, but two federal judges ruled the measure unconstitutional. The Justice Department then appealed directly to the Supreme Court (U.S. vs. Eichman, 89-1433).
In other actions, the court:
--Ruled unanimously that the Defense Department may order a National Guard unit to Central America for training exercises, without the permission of the state governor. This controversy arose in the mid-1980s when several governors opposed the Reagan Administration’s plan to send Guard units to Honduras for road building and other projects.
The Constitution created state “militias” to be called forth in national emergencies, but leaves the states the authority to “train” the troops. Massachusetts Gov. Michael S. Dukakis and Minnesota Gov. Rudy Perpich challenged the Reagan policy but the court concluded that the federal government has the first call on the guard’s services (Perpich vs. DOD, 89-542).
--Ruled 7-2 that policemen may stop and interrogate a motorist based on sketchy information furnished by an anonymous tipster. The Alabama courts had thrown out the drug arrest of a Montgomery woman because police could not verify any of the details in a phone tip. But the high court said that some key details, such as the type of automobile and its location, proved to be correct, and that was sufficient (Alabama vs. White, 89-789).
DIFFICULT TASK--Many have attempted to amend the U.S. Constitution but few have succeeded. A5
ANTI-FLAG BURNING LAW VOIDED
The U.S. Supreme Court struck down the Flag Protection Act of 1989. The law, which made it a crime punishable by up to a year in prison for anyone to burn mutilate, deface, maintain on the ground or trample on any flag of the United States, was overturned by a 5-4 vote. MAJORITY OPINION William J. Brennan Jr. Thurgood Marshall Harry A. Blackmun Antonin Scalia Anthony M. Kennedy DISSENTING OPINION John Paul Stevens William H. Rehnquist Byron R. White Sandra Day O’Connor