Symbolic Speech

Symbolic speech is a facet of free speech, which protects a persons conduct or expressions about a particular issue. A large and enduring example of symbolic speech has been the issue of flag burning. Flag burning outrages many Americans. As an extreme form of political dissent, this act strikes at the nation's most cherished symbol and, by extension, its sense of heritage and pride. It is no wonder, then, that protection of the flag has been fiercely enshrined in state and federal law throughout the twentieth century. Protesters who occasionally break these laws do so to protest national policy and values, especially during times of crisis. Whatever their motives, society has been quick to punish them. Yet the thrust of Supreme Court doctrine over the century has favored dissenters, as the Court increasingly ruled that the Constitution protects even those types of protest that deeply offend popular and official beliefs. In doing so, it embraced the idea that certain expressive actions, as well as words, are protected by the First Amendment as forms of so-called symbolic speech. This trend ultimately led to its controversial 1989 ruling that anti-flag burning laws are unconstitutional.

Political dissent is as old as politics itself. In U.S. history, it has been present from the beginning, first in the wellsprings of the Revolutionary War and soon thereafter when disputes between the founders nearly thwarted passage of the Constitution. Ever since, the First Amendment's guarantee of free speech has been repeatedly tested. For those in power, tolerance for unpopular viewpoints has been in short supply. Government crackdowns have recurred many times, from suppression of labor protests in the 1800s, to massive roundups of suspected radicals in both world wars, to the systematic harassment of alleged communists in the Cold War era, and the beatings and jailings of Civil Rights and Vietnam War demonstrators. Dissenters have sometimes found the First Amendment's bold words to be cold comfort.

In this context, political treatment of the flag has had a relatively modern role. Legislation first appeared in the late nineteenth century, during a period of tumult as waves of immigration brought new arrivals. Fearful of change, the expanding nation regarded its flag protectively. In 1878, Congress considered a law proposing a ban on the flag in advertising, ultimately rejecting it because politicians wanted to use it in their own campaigns. Two decades later, protective measures were encouraged by organizations such as the American Flag Association, the Daughters of the American Revolution, and the hate group, the Ku Klux Klan. The actions of such would-be protectors of tradition begged the question: what did the nation's flag need to be protected against?

Pennsylvania's 1898 law making it a crime to damage the flag started a trend that would continue for thirty years. One by one, states added their own anti-desecration laws, as well as others banning the commercial use of the flag or the flying of other flags. In reality, there was no frequent attack upon the American flag, and, in any case, there did not have to be. Influencing these laws were the great upheavals of the early twentieth century. World War I and its aftermath saw the rise of political dissent and a harsh official reaction against it. The Bolshevik revolution in Russia produced the first so-called Red Scare in the United States, as local, state, and federal authorities hunted down, jailed, and deported suspected radicals, deemed "Reds" in a disparaging reference to the color of the Communist flag. During this time, Congress passed an anti-desecration law applying to the District of Columbia.

While lawmakers were busy trying to protect the flag, the Supreme Court gradually moved in another direction. Its earliest opinion gave little sign of how far it would go. Halter v. Nebraska (1917) held that a state could ban flag use in advertising, thus stopping a company from displaying the flag on its beer containers. The decision was made on the basis of property rights, however, rather than freedom of speech because, at this point in history, federal courts did not apply a constitutional test for speech rights to state cases. That situation changed only a few years later in Gitlow v. New York (1925), the landmark decision which began extending the First Amendment's protections to the states. As subsequent cases took this expansion further, states, accustomed to controlling speech as they saw fit, would face court challenges to their laws.

Perhaps coincidentally, one of the first and most important challenges concerned a state flag law. Dating to 1919, California's ban on displaying a red-colored flag was a product of the Red Scare, when lawmakers were anxious to protect citizens from anarchy and radicalism. One decade later, in 1929, such passions had hardly subsided. The Better American Federation, a citizen group, had convinced local police to raid a summer camp for working class children that was run by several groups, including Communists. Finding a red flag, police arrested staff members and a part-time teacher, Yetta Stromberg, who was later convicted. On appeal to the U.S. Supreme Court in Stromberg v. California (1931), she argued that the state law prohibited the symbol of a legal political party. The Court's 7-2 decision in her favor concluded that the statute was vague and interfered with constitutionally-protected speech. Dramatically, the Court for the first time ruled that a state law violated the First Amendment. And it held that a form of non-verbal speech -- displaying a flag -- enjoyed constitutional protection, too.

By the 1940s, wartime passions brought a new legal reaction. Flag saluting and recitation of the Pledge of Allegiance were seen by many as proof of patriotism. Those who refused to demonstrate their loyalty suffered prosecution and worse. In particular, the Jehovah's Witnesses, maintaining that flag saluting violated their religious beliefs, paid a high price for their children's refusal to take part in public school ceremonies, from school expulsions to physical assaults, burnings of their meeting places, and even threats by authorities to confiscate their children. In 1943, citing speech freedoms rather than religious rights, the Court declared that the purpose of the Bill of Rights was to place the exercise of controversial freedoms "beyond the reach of majorities and officials" (West Virginia State Board of Education v. Barnette). That same year, it ruled that Mississippi could not punish students for "refusal to salute, honor, or respect the national and state flags and governments."

Although court rulings embraced speech rights, the period which followed was dark for dissent. Throughout the 1950s and into the 1960s, the Cold War gave rise to anti-Communist hysteria, famously characterized by the witch hunts of Senator Joseph McCarthy and the House Un-American Activities Committee. Yet even as the government was preoccupied with finding so-called subversives, two major social movements were afoot. The Civil Rights movement pressed for equal rights for African Americans, and, by the mid-1960s, growing hostility to the U.S. war in Vietnam brought about outpourings of public protest. Widespread political dissent, on a scale not seen before, became popular. And as anti-war protests increased, the news media frequently carried an image both unfamiliar and disturbing to many Americans -- the national flag being burned in demonstrations.

While avoiding any ruling on flag burning itself, the Supreme Court continued to define the limits of symbolic speech. Generally, these decisions expanded protection. As state flag misuse laws failed to survive Court scrutiny, convictions under these laws were overturned. In Street v. New York (1968), the Court ruled that contemptuous words spoken about the flag were constitutionally protected. Two 1974 Court decisions set aside convictions for offensiveness that were based on wearing a flag patch on the seat of one's pants and taping a peace symbol onto a flag. Importantly, however, the Court said there were times when symbolic speech was not protected. This recognition emerged in response to anti-war demonstrators burning their military draft cards, the documents which, by law, they were required to carry in preparation for being called upon for military service. In United States v. O'Brien (1968), the Court distinguished between speech and the "nonspeech" action involved in this form of protest. When these two types of action were combined, the Court found, "a sufficiently important governmental interest in regulating the nonspeech element can justify limitations on First Amendment freedoms." The government's interest in running the military draft thus outweighed the protesters' speech rights. For future symbolic speech cases, the important test now would be how important an interest the government could assert.

Then, in 1989, came the bombshell. In Texas v. Johnson, the Court ruled that flag burning was constitutionally protected. The case grew out of a protest at the 1984 Republican National Convention in Dallas, where Gregory Lee Johnson was arrested for burning the flag and chanting, "America, the red, white, and blue, we spit on you." Convicted under state law, Johnson later won on appeal, after which Texas authorities appealed to the U.S. Supreme Court. The state's law forbade desecration which "the actor knows will seriously offend one or more persons." Texas offered two main justifications for its law: preventing violence and preserving the flag as a national symbol. Neither justification persuaded the Court. Johnson's action was expressive communication, it ruled, and government "may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The narrow 5- 4decision reflected a majority made up of liberals and conservatives. Anticipating the controversy it would provoke, Justice William J. Brennan Jr.'s opinion cautioned that people should not be surprised by the decision, as it grew out of the Court's earlier flag rulings. Brennan also explained the principle of liberty at stake: "We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

Like earlier rulings on abortion and affirmative action, the decision ignited a political firestorm. Republicans and Democrats alike immediately began looking for a means to get around it. The former, led by President George Bush, demanded a constitutional amendment forbidding flag burning, while the latter pushed for legislation, arguing that only one vote on the Supreme Court was needed in order to produce a new ruling. Congress swiftly passed the Flag Protection Act of 1989, providing for the criminal prosecution of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" the flag. Tailored carefully to skirt the issue of symbolic speech altogether, the law avoided the constitutional pitfalls which had sunk Texas' statute. Congress thereby hoped to have the law regarded in the same way as the draft card issue in O'Brien.

This legislative strategy failed. Civil liberties activists staged flag burnings in protest of the law and then won in court. In United States v. Eichman (1990), the Supreme Court invalidated the Flag Protection Act, once again by a 5- 4 majority. The Court acknowledged the differences between the federal law and the Texas statute, yet found these to be superficial. Even though the federal law did not prohibit offensive treatment of the flag, the government's interest in suppression of free speech violated the First Amendment.

In the aftermath of the Johnson and Eichman decisions, political debate over flag burning has been as hot as ever. Free speech advocates strongly oppose any efforts to dictate flag treatment, fearing that such measures will ultimately constrain all speech rights. Politicians, backed by public opinion polls, have pressed for action. Stymied by the Supreme Court, federal lawmakers have looked to a constitutional amendment as their best hope. Such efforts ground to a halt in 1990 and 1995, but regained momentum in 1998. If an amendment were to pass Congress and be sent to the states for a vote, the approval process would take years. In any event, the deep tensions between liberty and authority, dissent and the status quo, mean the issue is unlikely ever to be truly settled.

Further Readings

• American Civil Liberties Union. "History of Flag Protection." www.aclu.org, 1998
• Collins, Randolph Marshall. "The Constitutionality of Flag Burning: Can Neutral Values Protect First Amendment Principles?" American Criminal Law Review, 1991
• Dyroff, David. "Legislative Attempts to Ban Flag Burning." Washington University Law Quarterly, Fall 1991
• Greenawalt, Kent. "O'er the Land of the Free: Flag Burning as Speech." UCLA Law Review, June 1990
• Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993
• West's Encyclopedia of American Law. St. Paul: West Group, 1998