James B. Travis

GVPT 339A

DR. McIntosh
 
 
 
 
 
 

ABSTRACT
 

The U.S. House of Representatives passed House Joint Resolution 54 (H.R.J Res. 54) on June 12, 1997. This resolution, the third attempt by Congress since Texas v. Johnson, 491 U.S. 397 (1989), is a proposed amendment to the United States Constitution allowing Congress to prohibit flag desecration (Conyers). Yet, how necessary is this measure? Currently, the majority of cases involving flag desecration, which in turn are starkly minute, can easily fall under the jurisdiction of "breach of peace" or "potential to incite violence" arguments. Is the Constitution to be used as a vehicle for establishing the popular beliefs of the majority?
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

INTRODUCTION

At the beginning of the century, the notion of desecrating an American flag was not understood on the same level which it is understood today. The birth and evolution of flag desecration as an issue resembles the life of an average man--certain ideas and beliefs were taken for granted and held for many years, and suddenly the mid-life crisis comes along and changes everything.

The issue began as a question about commercial advertising, but has become a contention of freedom of speech. Through six key cases, the U.S. Supreme Court has managed to solidify the burning of a flag as a form of expressive conduct. However, members of Congress lately are intent on contending the Court's interpretation on a legislative level.

Currently, the U.S. House of Representatives, led by Congressman Gerald Solomon, is attempting to push H.R.J Res. 54 through the Senate and establish a national act protecting the physical and symbolic integrity of the American flag. Yet, by analyzing the precedents and reasoning in key Supreme Court cases⁽¹⁾, one is inclined to believe that the Court will once again strike down such a measure.
 
 

HISTORY

I. HUMBLE BEGINNINGS

The origins of American-flag desecration go as far back as the 1890s. At the close of the 19^th Century, commercial use of the American flag had increased dramatically due to new popularity following the aftermath of the American Civil War (Goldstein, Desecrating the American Flag 5). In response to actions such as these, and driven by a desire to sanctify the American flag, the U.S. House of Representatives passed a bill in 1890⁽²⁾ which prohibited flag "desecration" in any form or manner. Since there had been no reported instances of flag destruction since the Civil War, the House Judiciary Committee issued a report indicating that the purpose of the bill was to ban the use of the flag in advertising (Goldstein, Desecrating the American Flag 5). Consequently, for the large part the legislative history of flag-desecration has mainly been considered in the context of commercial advertising misuse. In other words, the practice of flag desecration was not widely considered a First Amendment issue until nearly a century after it surfaced.

By the end of the 1890s, the issue of flag desecration had extended outside the immediate boundaries of commercial advertising. Aside from the more historically common rebellious burnings (Goldstein, Burning the Flag 1-2), originating during the Civil War, flag desecration had even become an effect of a partisan war. It seemed as if the situation was created by the solution--akin to a self-fulfilling prophecy. Once a law banned the legality of a certain action, that action suddenly became a popular action for subversive behavior, such as during the 1896 campaign. During the campaign, members of the Democratic National Party, enraged by the confidence of many of the Republican candidates, tore and burned a number of the flags flown by the Republican members during rallies (Goldstein, Desecrating the American Flag 15).

As a result of the convergence of similar actions, between 1898 and 1902 a retired newspaper advertising executive, Charles Kingsbury Miller⁽³⁾, lobbied for anti-flag-desecration legislation. His forecast of the years following 1898 was a dreary one, full of incessant anarchists and radicals bent on destroying our nationhood and national symbols. Furthermore, he ostracized public officials in the press who did not support flag-desecration legislation. Out of all the prominent individuals present at the onset of the "flag preservation" movement, which first became prominent in the 1890s, the successes of flag preservation efforts had been publicly declared to have been "due more to Miller's efforts 'than [to] those of any one man'" (Goldstein, Desecrating the American Flag 7):

Between 1897 and 1932, lobbying by the [Flag Protection Movement] and its supporters succeeded in obtaining passage of flag desecration laws in all forty-eight [contiguous] states; thirty-one states acted between 1897 and 1905 alone (Goldstein, Burning the Flag 5).
 

II. PROMINENT AND INFLUENTIAL ORGANIZATIONS

Many organizations facilitated the ease by which flag-desecration legislation and propaganda survived in the mainstream of society. In 1900, various flag-oriented committees and organizations consisting of veterans' associations and civic associations alike converged into a larger, more influential organization in order to better coordinate their efforts. Consequently, the American Flag Association (AFA) was born (Goldstein, Desecrating the American Flag 8).

The two most important organizations at the forefront of the flag preservation movement were the Sons of the American Revolution (SAR) and the Daughters of the American Revolution (DAR). The resulting competition between the different committees in their attempts to draft legislation pervaded throughout the organization hierarchies, from those in positions of leadership to those on the grassroots level. Although different committees debated as to what actions (such as one particular state's enacting of a flag desecration statute) were attributed to whom, the fact that the AFA was able to remain visible in the contemporary political torrents was a feat in itself. For instance, Robert J. Goldstein, recounts the relative success of the AFA in the realm of politics:

Between its organization in 1898 and its departure from the national stage in about 1912, the AFA published six "circulars of information." …these circulars provide by far the most detailed information about the FPM's [Flag Protection Movement] work and progress during its formative and most influential years, which resulted in the passage of state flag desecration laws in over thirty states and territories between 1897 and 1912 (Goldstein, Desecrating the American Flag 9).

Moreover, as a result of the AFA's efforts, congressional hearings on federal flag desecration legislation were held during at least six years during a ten year period, and flag desecration bills passed the Senate in 1904, 1908, 1913, 1914, and 1918 (Goldstein, Desecrating the American Flag 9).
 

III. REDEFINING DESECRATION

Contrary to the mainstream, there were voices amidst the sea of patriots who questioned the flag preservation movement and its merit. For instance, the question of whether or not advertising is a form of desecration was commonly asked by dissenting judges and concerned activists. For instance, in McPike v. Van De Carr, 86 New York Supplement 644 (1904), Justice Patterson of the New York State Appellate Division stated his opposition to the idea that the state can categorize advertising as a form of desecration: "the use of a picture or representation of the American flag…in connection with the advertisement of merchandise, in no way relates to any one of the legitimate subjects to which the police power of the state extends" (Goldstein, Desecrating the American Flag 46). In one particular account, Goldstein mentions that "a number of critics suggested that the [flag preservation movement] sought to make a "fetish" of the flag, in which mindless idolatry was substituted for understanding of what the flag truly represented" (Goldstein, Desecrating the American Flag 63).

However, these voices were heard on only rare occasions during the pre-Vietnam War era. Until the actual destruction and mutilation of the American flag in its most basic sense became a visible practice, the majority of constituents did not think or wish to question the advertisement-oriented definition of "desecration."
 

IV. THE ROLE OF THE U.S. SUPREME COURT

Until 1989, a flag-desecration statute⁽⁴⁾ had yet to be established on a national level. Notably, the first case in which the U.S. Supreme Court contended with the issue of flag desecration was Halter v. Nebraska, 205 U.S. 34 (1907). In this case, the Court evaluated the constitutional validity of a Nebraska statute entitled "An act to prevent and punish the desecration of the flag of the United States." In particular, the statute made it a misdemeanor to "sell, expose for sale, or have in possession for sale, any article of merchandise, upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States" (Goldstein, Desecrating the American Flag 49).

The appellants, one of whom was Halter, were charged with violating the statute by advertising and selling bottled beer with labels bearing an image of the flag. The appellants immediately pleaded not guilty, arguing that their rights as outlined by the Fourteenth Amendment had been infringed upon. The opinion of the Court, delivered by Justice Harlan, relied on four basic precepts: 1) the American flag is an "emblem of National sovereignty;" 2) every American takes pride in the flag as a national symbol; 3) the State has a substantial interest in providing for the well-being of the people; and 4) in absence of national legislation, the State is accorded the power to act in this regard. By this line of reasoning, Justice Harlan argued that the statute served the interests of the State of Nebraska in maintaining order and providing for the well-being of its citizens. As a result, the Court upheld the constitutionality of the Nebraska statute, affirming the convictions of the appellants. For the meantime, the use of flags in advertisement was recognized by the Court as a nationally protected emblem.

Related tangentially to the issue of flag desecration, the Court decided Stromberg v. California in 1931. In this case, the appellant, Stromberg, a camp teacher with Socialist sentiments, was charged with violating a California statute prohibiting the display of red flags. This case directly touched upon the notion of flags as having elements of expressive symbolism. The Court ruled the statute unconstitutional, setting precedent as to the expressive nature of flags:

A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of [free political discussion] is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. Stromberg v. California, 283 U.S. 259 (1931)⁽⁵⁾.

The decision in Stromberg v. California effectively clarifies the rights of the speaker to utilize symbols under the guise of protected speech. Similarly, in the case of United States v. O'Brien⁽⁶⁾, the State's rights and jurisdiction are clarified to its advantage. Although not dealing with flags, this case centers on the act of destroying Selective Service registration cards which are protected by a state regulation⁽⁷⁾. Chief Justice Warren, who delivered the opinion of the Court, noted that the statute did not "abridge free speech on its face" (Van Alstyne 287) at the beginning of his opinion, initializing the positive light that the State would eventually occupy.

O'Brien, the respondent, admitted to burning the card⁽⁸⁾ as a means of expressing his anti-war beliefs and also as an attempt to persuade others to adopt his views. He was arrested and charged shortly thereafter. O'Brien alleged that his freedom of speech had been abridged, but the Court did not acknowledge this perspective. Warren claimed that the Court "cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea" (Van Alstyne 288). Furthermore, the Court characterized O'Brien's act as having both a communicative and noncommunicative aspect, which allows for regulation by the State since the First Amendment deals strictly with communicative elements. This is the loophole through which the Court was able to easily decide against O'Brien. Interestingly enough, however, this loophole is not applicable to the flag desecration argument since the expressive nature of such an action is almost universally agreed upon.

Finally, the Court found that the Government has a substantial interest in regulating the administrative aspect of the Selective Service and was therefore justified in limiting O'Brien's actions. This aspect of the opinion is important because it establishes a means by which government regulations can be maintained--if the State can prove it has a substantial interest in a matter, then it can regulate that matter. Overall, however, the contribution of this case is what is referred to as the O'Brien test. At the heart of this opinion is a list of standards that suggest whether or not a State is justified in regulating an activity:

A government regulation of an act is justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction an alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest (Van Alstyne 288).

Six years later, the Court once again faced the issue of expressive symbols. However in the case of Spence v. Washington⁽⁹⁾, the American flag was actually at the heart of contention. This time the appellant, Spence, was a college student who hung a flag from his apartment window, upside down. The controversy in this case entailed that peace symbols made from removable black tape were attached to the front and back of the flag.

On May 10, 1970, three Seattle police officers observed the flag, entered the apartment, and according to the "improper use" statute of Wash.Rev.Code § 9.86.020, charged the appellant with a crime. The appellant testified that he willingly displayed the flag as a means of expressing his belief that "America stood for peace," in light of both the negative sentiments surrounding the invasion of Cambodia and the recent killings at Kent State University. Furthermore, he testified that he used a particular tape in order to ensure that the flag would not be damaged upon its removal. The appellant claimed that his actions were purely communicative and expressive. Therefore, he maintained that the Washington statute was unconstitutional because it abridged his constitutionally protected freedom of expression.

The Court decided that Spence's action was "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments" Spence v. Washington, 418 U.S. 405 (1974)⁽¹⁰⁾. Basically, the Court ruled that considering the motives of the appellant and the context in which his actions were taken, his particular use of the flag was not inconsistent with expression as it is protected under the First Amendment. Interestingly, the Court abandoned outright the State's argument concerning "breach of peace," claiming that the circumstances ensured that Spence's speech was protected because the "message [was] direct, likely to be understood, and within the contours of the First Amendment." Spence v. Washington, 418 U.S. 405 (1974)⁽¹¹⁾.

Consistent with Justice Douglas' concurring opinion, the Court relied on the reasoning in Street v. New York, 394 U.S. 592 (1969) in which it was established 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⁽¹²⁾." However, in Justice Rehnquist's dissenting opinion in Spence v. Washington⁽¹³⁾, he maintained that protected speech may be subject to reasonable limitation when important countervailing interests are involved. Moreover, he stated that even freedom of speech remains subject to reasonable accommodation to other valued interests. He explains that the integrity of certain widely agreed upon interests, such as the United States flag, must be preserved.

Finally, in 1989, the U.S. Supreme Court came face-to-face with the issue that had been threatening to surface--the constitutionality of burning an American flag. During the Republican National Convention of 1984, the respondent, Gregory Lee Johnson, marched through the streets of Dallas along with a number of other demonstrators protesting the policies of the Reagan administration and of certain Dallas-based corporations. During the protest, buildings and personal property were painted and damaged at times. However, Johnson had not taken part in any of these actions. At the close of the protest, in front of Dallas City Hall, Johnson unfurled the American flag, doused it with kerosene, and set it afire. While the flag burned, the protestors chanted, "America, the red, white, and blue, we spit on you." Once the protestors left the area, a bystander collected the remains of the flag and buried them in his backyard. No one was injured during the protest, but several witnesses stated that they had been deeply offended by the display. Out of approximately one hundred demonstrators, only Johnson was charged with committing a crime (Van Alstyne 315).

The State of Texas charged him with desecrating a venerated object, in violation of Tex. Penal Code Ann. § 42.03(a)(3)(1989). He was convicted under this statute, sentenced to one year in prison and fined $2,000. The Court of Appeals for the Fifth District of Texas at Dallas affirmed Johnson's conviction, but the Texas Court of Criminal Appeals reversed, holding that the State could not, consistent with the First Amendment, punish Johnson for burning the flag in these circumstances. The Court simply reversed on the grounds that the statute was unconstitutionally applied to his case but not that the statute was unconstitutionally vague and overbroad, which is in fact the legal question posed by the U.S. Supreme Court (Van Alstyne 316).

In Texas v. Johnson, 491 U.S. 397 (1989), the Court found that "[Johnson's] conviction was [in]consistent with the First Amendment⁽¹⁴⁾." As a result, the Texas statute was also deemed unconstitutional and repealed. Justice Brennan, who wrote the opinion of the Court, made use of all the important precedents to date. Above all, however, only a pivotal few made the difference that has affected the nation. First of all, Brennan used the O'Brien test⁽¹⁵⁾ to ascertain whether the State had sufficient interest in limiting Johnson, considering that "speech and nonspeech elements were combined in the same course of conduct" (Hall 868). Secondly, the Court had to evaluate the State's "time, place, manner⁽¹⁶⁾" argument. If the State could justify "incidental limitations," then the Court would have to consider whether Johnson was being regulated because of the content of his speech or because of the tendency of his speech to "incite others to imminent lawlessness or violence"⁽¹⁷⁾ (Hall 868). Justice Douglas has stated agreement with the reasoning of the Iowa Supreme Court in State v. Kool, 212 N.W.2d 518, in which the Court held that "symbolic speech" need not be free of disruptive qualities to be protected speech⁽¹⁸⁾ (Van Alstyne 310).

Consequently, Brennan found that the Texas statute, along with Johnson's conviction, were unconstitutional because they failed the aforementioned tests. There was no evidence that Johnson's actions would cause an outbreak of violence, or even "imminent lawless action." Also, the State failed to show a substantial interest in regulating Johnson's actions other than simply disliking the content of his message. And that is indisputably unconstitutional (Pilon, 11).

And lastly, no more than a year after the Court decided Texas v. Johnson, it was again thrown into the melee. This time, however, the Court was dealing with a national law--the 1989 Flag Protection Act⁽¹⁹⁾. United States v. Eichman, 496 U.S. 310 (1990) involved two individuals who had been convicted of violating the Act. The United States government consolidated both appeals, whereby two U.S. District Courts ruled the Act unconstitutional based on the reasoning in Texas v. Johnson.

Unlike the argument in Texas v. Johnson, the government argued that the Act was aimed at prohibiting all forms and manners of flag mistreatment, rather than simply offensive conduct. Again for the Court, Justice Brennan saw it otherwise. He contended that regardless of neutral content, "it is clear that the Government's asserted interest is 'related to the suppression of free expression⁽²⁰⁾'" (Hall 246). Morton H. Halperin, director of the Washington office of the American Civil Liberties Union stated in a 1990 sponsored debate, "It is absolutely clear that dislike of flag-burning on the part of…any legislature has to do with the symbolism of the flag and with the message being expressed by those who burn it" (Pilon, 11).

In fact, Brennan suggested that the Court would similarly consider any law constitutionally suspect that is directed at regulating flag desecration. "Eichman reaffirmed the Court's commitment to protecting extremely provocative expression" (Hall 246).

V. OVERVIEW

This progression (see appendix 1) from a very conservative line of reasoning to today's more liberal interpretations has invigorated both sides of the debate--supporters of flag desecration legislation are outraged more than ever that practices such as burning the flag are constitutionally protected; while opponents of such legislation are further relieved by the mentality of the Court's, only concerned with the uncertainties of Congress. Yet the progression of this issue through history has not quite ended. A new chapter, titled H.J. Res. 54, is being written. As such, new arguments have been initiated and new perspectives considered.

CONTEMPORARY ARGUMENTS

I. TO AMEND, OR NOT TO AMEND

The basic contention between the opposing sides of this issue is whether or not an amendment to the Bill of Rights is necessary or even warranted. Supporters of H.J. Res. 54, such as Congressman Ron Packard, feel that the issue must be settled indefinitely, and that an amendment to the Constitution would realize that goal. Generally speaking, those on either side of the fence agree that the flag is an important and even revered symbol of Democracy and American heritage. However, supporters of the bill believe that it is a travesty to allow public desecration of "the symbol…[that] embodies the values, traditions and aspirations that bind [Americans] together as a nation" (Packard). Supporters of flag desecration legislation, as Justice Rehnquist commented in Spence v. Washington, 418 U.S. 405 (1974), "recognize that even protected speech may be subject to reasonable limitation when important countervailing interests are involved. …The right of free speech, though precious, remains subject to reasonable accommodation to other valued interests."

However opponents of this bill feel that an amendment is unnecessary and unwarranted. Individuals such as Carole Shields⁽²¹⁾, President of People For the American Way (PFAW), feel strongly about not revising such an important document: "…the Bill of Rights is not a first draft. For over two centuries, Congress has never, ever passed a constitutional amendment to restrict the Bill of Rights" (PFAW, "Testimony…). In fact, she supports this claim with statistical results:

That is why, according to a 1995 Peter Hart poll commissioned by the American Bar Association, a majority of Americans opposed a flag desecration amendment by 52% to 38% when they were informed that it would be the first in the nation's history to restrict First Amendment freedoms. (PFAW, "Testimony…)

In terms of the actual incidences regarding flag desecration, opponents of the bill argue that the cases are so few and far between that not only is an amendment to the Bill of Rights unwarranted, it is unnecessary. The reasoning behind this claim is simply that the few cases that do surface can generally be prosecuted under laws relating to "breach of peace" or "inciting violence" (Conyers), or even under public burning, larceny or destruction of public property statutes (PFAW, "The Flag Desecration Amendment"). According to an article in the Connecticut Law Tribune, there have only been 45 reported incidents of flag burning between 1777 and 1989, the time of the Texas v. Johnson decision (Conyers). In fact, published reports show that flag burning incidents have, on average, occurred less than five times a year since the United States v. Eichman case (PFAW, "A Threat…).

II. IMPLICATIONS OF AN AMENDMENT

Opponents of the bill paint a stark image of the future if this legislation is passed. They argue that the codified language is "vague and overbroad," which will result in applications to aspects of American society that were totally unintended. Such consequences could result in a reversal of roles:

The amendment is also phrased in broad and vague terms that will have unintended consequences including censorship of images of the flag in works of art, commerce or advertising that contains physical representations of the flag. Imagine what it would be like to be arrested for wearing a T-shirt or jacket depicting the American flag! Under this vague amendment, those that seek to honor the flag may instead be viewed as "desecrating" it. (PFAW, "The Flag Desecration Amendment")

Opponents of the amendment also argue that by restricting certain behavior, the Government may inadvertently incite the behavior. One argument is that more instances of flag burning would occur in protest of the flag desecration act itself. This is a prime example of an unintended, yet possible consequence of a flag desecration amendment.

Finally, opponents of the amendment maintain that by restricting the Bill of Rights, we are demoralizing the nation and weakening democracy. Carole Shields, in her testimony to the House Judiciary Committee, argues the macroscopic implications:

Indeed, to ban so-called flag desecration would put America in the unwelcome league of totalitarian states such as China and the former Soviet Union which far dissent and oppose our freedoms of expression and peaceful assembly and protest. We ought not to allow a handful of offensive protesters to achieve what the fascists we fought in world War II and the communists we resisted during the Cold War could not--to make us surrender our most fundamental freedoms. (PFAW, "Testimony…)

CONCLUSION

In West Virginia State Board of Education v. Barnette⁽²²⁾, Justice Jackson said, "We have come too far as a nation to risk jeopardizing our commitment to freedom in a fruitless endeavor to legislate patriotism." From the likes of commercialism and advertising to the burning and destruction of America's most famous standard, the opposing arguments of the flag desecration issue have culminated into yet another manifestation of social turbulence--House Joint Resolution 54. As Americans, do we love the flag enough to limit our freedom of speech? Or do we love what the flag represents enough to let it be destroyed for the sake of our speech?

The Court has established and maintained a steady course toward the protection of freedoms. Congress, on the other hand, has shown its loyalty to the beliefs of its constituents, but only as long as it takes to be reelected? H.J. Res. 54 is the third attempt in seven years to legislate patriotism. Each time the measure has failed, as it should have. The freedoms outlined in the Bill of Rights were originally broad and undefined concepts which allowed us to mold our image of society as best we could. The pure joy that is the Bill of Rights is its ubiquity--the fact that there are so many various ways and situations in which our "unalienable rights" can be applied is what makes the Constitution a wondrous document.

However, by limiting the scope of our freedoms, we are cutting off our own supply of livelihood. By indefinitely stating what will never be, we are opening the door to other statements about what will indefinitely never be. That was not, and is not the intended purpose of the Constitution. We must keep perspective of the larger picture. There are other ways to satisfy majority beliefs without weakening one of the stanchions supporting this Country.

APPENDIX 1
 

Halter v. Nebraska,  205 U.S. 34 (1907)	Four assumptions: · the American flag is an "emblem of National sovereignty;"  · every American takes pride in the flag as a national symbol;  · the State has a substantial interest in providing for the well-being of the people; and  · In absence of national legislation, the State is accorded the power to act in this regard.  · By this line of reasoning, Justice Harlan argued that the statute served the interests of the State of Nebraska in maintaining order and providing for the well-being of its citizens.
Stromberg v. California,  283 U.S. 259 (1931)	· This case directly touched upon the notion of flags as having elements of expressive symbolism.  · "A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of [free political discussion] is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. "
United States v. O'Brien,  391 U.S. 367 (1968)	A government regulation of an act is justified if it is within the constitutional power of the Government;  · if it furthers an important or substantial governmental interest;  · if the governmental interest is unrelated to the suppression of free expression;  · And if the incidental restriction an alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest (Van Alstyne 288). · "Time, place and manner" test
Spence v. Washington,  418 U.S. 405 (1974)	· An act can be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments" · A United States flag may be used as a form of expression when the "message is direct, likely to be understood, and within the contours of the First Amendment."
Texas v. Johnson, 491  U.S. 397 (1989)	· Burning an American flag is a constitutionally recognized and protected form of symbolic expression. · A state cannot limit an individual's speech based on content.
United States v. Eichman,  496 U.S. 310 (1990)	· Any law directed at forms of flag desecration will be construed by the Court as constitutionally suspect · Any such law is inescapably linked to government's disapproval of the message conveyed

 
 

BIBLIOGRAPHY
 

Artimovich, Patricia; Phillips, Jana Halloran, Eds. Stars, Stripes & Statutes. Pittsburgh,

Pennsylvania. National Flag Foundation, 1992.
 

Conyers, John. "Burning the Bill of Rights." The Connecticut Law Tribune. June 30,

1997.
 

Goldstein, Robert Justin. Burning the Flag. Kent, Ohio. The Kent State University Press, 1996.
 

Goldstein, Robert Justin, Ed. Desecrating the American Flag. Syracuse, New York.

Syracuse University Press, 1996.
 

Hall, Kermit L, Ed. The Oxford Companion to the Supreme Court of the United States.

New York, NY. Oxford University Press, 1992.
 

Packard, Ronald. "Flag Desecration." Statement: Hon. Ron Packard. June 12, 1997.

http://www.house.gov/packard/flag6-12.htm (Dec. 2, 1997).
 

Pilon, Roger, Ed. Flag-Burning, Discrimination, and the Right to do Wrong: Two

Debates. Cato Institute Center for Constitutional Studies, 1990.
 

People for the American Way. "Flag Amendment Would Desecrate U.S. Constitution."

Press Releases. February 13, 1997.

http://www.pfaw.org (Dec.2, 1997).
 

People for the American Way. "The Flag Desecration Amendment."

Press Releases. April 30, 1997.

http://www.pfaw.org/105/webflag.htm (Dec.2, 1997).
 

People for the American Way. "The Flag Desecration Amendment: A Threat To Our

First Amendment Freedoms." Press Releases. February 13, 1997.

http://www.pfaw.org/105/97/points.htm (Dec.2, 1997).
 

People for the American Way. "PFAWAF President Carole Shields to Congress: Protect

Old Glory from Cynical Politicians."

Press Releases. April 30, 1997.

http://www.pfaw.org/press/flagaprl.htm (Dec.2, 1997).
 

People for the American Way. "Testimony of Carole Shields, President of People For the

American Way, Before the Subcommittee on the Constitution of the House

Judiciary Committee." Press Releases. April 30, 1997.

http://www.pfaw.org (Dec. 2, 1997).
 

Van Alstyne, William W. First Amendment: Cases & Materials, 2^nd Ed. Westbury, New

York. Foundation Press, 1995.
 

Van Alstyne, William W. First Amendment: Cases & Materials, 1997 Supplement.

Westbury, New York. Foundation Press, 1995.

1.

¹ Halter v. Nebraska, 205 U.S. 34 (1907); Stromberg v. California, 283 U.S. 259 (1931); United States v. O'Brien, 391 U.S. 367 (1968); Spence v. Washington, 418 U.S. 405 (1974); Texas v. Johnson, 491 U.S. 397 (1989); and United States v. Eichman, 496 U.S. 310 (1990).

2.

² In response to a House Judiciary Committee report indicating that the proposed bill's sole purpose was to prohibit use of the flag in advertising, the House of Representatives passed HR 10475 without hearings or floor debate. The bill never became law (Goldstein, Desecrating the American Flag 11).

3.

³ Charles Kingsbury Miller served as chairman of the flag committees of the Illinois chapters of the Society of Colonial Wars and the Sons of American Revolution. He was also one of the original members of the executive committee of the American Flag Association. Goldstein, Robert J. Desecrating the American Flag. Syracuse, NY. Syracuse University Press, 1996.

4.

⁴ The 1989 Flag Protection Act was ruled unconstitutional by the U.S. Supreme Court in United States v. Eichman, 496 U.S. 310 (1990) shortly after the Texas v. Johnson decision.

5.

⁵ Goldstein, Desecrating the American Flag 73.

6.

⁶ Van Alstyne 286.

7.

⁷ Title 50, App., United States Code, Section 462(b) of the Universal Military Training and Service Act of 1948 was amended in 1965 by Congress to include anyone "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate" (Van Alstyne 287).

8. ⁸ On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. A large crowd and several FBI agents witnessed the actions. Shortly after burning the cards, O'Brien and his companions were attacked by members of the crowd. An FBI agent subsequently brought O'Brien into the Courthouse and out of the melee.

9.

⁹ Van Alstyne 306.

10.

¹⁰ Van Alstyne 308.

11.

¹¹ Van Alstyne 310.

12.

¹² Goldstein, Desecrating the American Flag 122.

13.

¹³ Goldstein, Desecrating the American Flag 120.

14.

¹⁴ Van Alstyne 316.

15.

¹⁵ A government regulation of an act is justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction an alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest (Van Alstyne 288).

16.

¹⁶ A test established in O'Brien in which the context and circumstances of speech can authorize the State the power to limit an individual's freedom of speech

17.

¹⁷ Brandenburg v. Ohio, 395 U.S. 444 (1969) [Hall 868].

18.

¹⁸ Spence v. Washington, 418 U.S. 405 (1974) [Van Alstyne 310].

19.

¹⁹ This law prohibited the knowing mutilation, defacement, physical defilement, burning of, or trampling on any American flag (Hall 246).

20.

²⁰ United States v. Eichman, 496 U.S. 310 (1990) [Hall 246].

21.

²¹ Carole Shields testified before the House Judiciary Committee, Subcommittee on the Constitution, on Wednesday, April 30, 1997, stating her opposition to H.J. Res. 54.

22.

²² West Virginia v. Barnette, 319 U.S. 624 (1943)