Guiding Supreme Court cases pertaining to the U.S. flag

It took barely 10 years after Pennsylvania passed the nation's first law to make it a crime to "damage or destroy" the American flag for a flag-related case reached the Supreme Court.

The matter involved a Nebraska bottler using the flag to advertise "Stars and Stripes" beer. And in that 1907 case, Halter v. Nebraska, the court determined that Nebraska's flag-desecration law wasn't unconstitutional.

But the court considered Halter on property rights, not free-speech rights. The court didn't begin applying the First Amendment to judge the constitutionality of state laws until Gitlow v. New York in 1925.

With the First Amendment as its guide, the court's next flag-related ruling — in the 1931 Stromberg v. California decision — determined that a state law prohibiting the display of a "red flag" violated free-speech rights.

And even though the court did not consider flag desecration itself as the root of a case until Texas v. Johnson, case history of the court since then has consistently supported, albeit never unanimously, the free-speech rights of those using the flag.

Halter v. Nebraska
Minersville School District v. Gobitis
Smith v. Goguen
Spence v. Washington
Street v. New York
Stromberg v. California

Texas v. Johnson
U.S. v. Eichman
West Virginia State Board of Education v. Barnette; Taylor v. Mississippi


Halter v. Nebraska, 205 U.S. 34 (1907)

With Halter v. Nebraska, the U.S. Supreme Court offered its first views on flag-desecration laws, determining that a Nebraska law forbidding the use of the flag for advertising purposes didn't violate the Constitution.

Specifically, the court determined that criminal fines had been legally imposed upon the owners of a bottling company, which had painted the U.S. flag on beer bottles for advertising purposes.

Justice John M. Harlan, who wrote the unanimous opinion, found it unremarkable that more than half of the states at the time had enacted flag-desecration laws respecting the sovereignty of one of the nation's symbols.

"Indeed, it would have been extraordinary if the government had started this country upon its marvelous career without giving it a flag to be recognized as the emblem of the American Republic," Harlan wrote. "For that flag every true American has not simply an appreciation, but a deep affection."

Harlan said the statute clearly originated from the state's intent to cultivate feelings of patriotism.

"It may reasonably be affirmed that a duty rests upon each state in every legal way to encourage its people to love the Union with which the state is indissolubly connected," Harlan wrote.

Stromberg v. California, 283 U.S. 359 (1931)

In Stromberg v. California, the U.S. Supreme Court reversed a state court conviction of a young woman of the Young Communist League, who violated a state law prohibiting the display of a red flag as "an emblem of opposition to the United States government."

The woman raised the flag as part of a daily routine for a children's summer camp.

Chief Justice Oliver Wendell Holmes, writing for the majority opinion, said free political discussion calling for changes in government through lawful means is a fundamental principle of the American Republic.

Holmes further wrote that the state law was "so vague and indefinite as to permit the punishment of the fair use of this opportunity."

Legal experts cite Stromberg as the first in which the Court recognizes that protected speech may be nonverbal, or a form of symbolic expression.

But Holmes' opinion revealed that the court agreed that states possess a legitimate interest in maintaining order.

"The right is not an absolute one," Holmes wrote about free speech, "and the State in the exercise of its police power may punish the abuse of this freedom. There is no question but that the State may thus provide for the punishment of those who indulge in utterances which incite to violence and crime and threaten the overthrow of organized government by unlawful means."

The case was also among the first freedom-of-speech cases to reach the court in the wake of Gitlow v. New York. In that 1925 decision, the court ruled that the First Amendment prohibition against government abridging freedom of speech applied to the states as well as to the federal government. The decision was the first of several rulings holding that the 14th Amendment extended the guarantees of the Bill of Rights to state action.

Minersville School District v. Gobitis, 310 U.S. 586 (1940)

Felix Frankfurter, writing in a majority opinion in the first of several Pledge of Allegiance cases to come before the court, considered the conflicts between liberty of conscience and government's authority to safeguard the nation's fellowship to be the court's most difficult tests.

In Minersville School District v. Gobitis, the court opted for authority.

In this case, the court determined that Pennsylvania public schools had a legitimate goal in requiring students to recite the pledge. The case surfaced after Minersville, Pa., school officials expelled two children affiliated with Jehovah's Witnesses for refusing to say the pledge.

"Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs," Frankfurter wrote.

Frankfurter further wrote that the recitation of a pledge advanced the cause of patriotism in the United States. He said the country's foundation as a free society depends upon building sentimental ties.

"We are dealing with an interest inferior to none in the hierarchy of legal values," Frankfurter wrote. "National unity is the basis of national security. To deny the legislature the right to select appropriate means for its attainment presents a totally different order of problem from that of the propriety of subordinating the possible ugliness of littered streets to the free expression opinion through handbills.

West Virginia State Board of Education v. Barnette, 319 U.S. 624; Taylor v. Mississippi, 319 U.S. 583 (1943)

Three years after its decision in Minersville, the court took a new look at mandatory recitations of the pledge ... and changed its mind.

Before the court was a West Virginia State Board of Education regulation requiring all schools to conduct civics and history courses to foster a spirit of Americanism. The regulation included a mandate that all students recite the Pledge of Allegiance, a rule drafted in accordance with the Minersville ruling.

As with the Minersville case, a challenge surfaced after school officials had expelled Jehovah's Witnesses for refusing to say the pledge.

This time, the court denounced such a requirement and upheld a ruling from the U.S. District Court for the Southern District of West Virginia that struck down the rule as a violation of free speech and the establishment clause.

Justice Robert Jackson, who had joined the court only two years earlier, wrote the decision, echoing the free-expression sentiments of Stromberg v. California.

"A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn," Jackson wrote.

Jackson wrote that the First Amendment expressly prohibits public officials from bolstering patriotism by compelling flag salutes and pledge recitations.

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein," Jackson wrote.

But Justice Felix Frankfurter, the writer of the majority opinion in the Minersville case and a dissenter in this case, said the court was overstepping its bounds in striking down the West Virginia law. He said, too, that freedom of religion did not allow individuals to break laws simply because of religious conscience.

"Otherwise each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws," Frankfurter wrote.

Two of the justices who changed their minds between Minersville and West Virginia v. Barnette — Hugo Black and William O. Douglas — would become the most ardent supporters of the First Amendment.

"Words uttered under coercion are proof of loyalty to nothing but self-interest," wrote Black and Douglas in a concurring opinion. "Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions."

On the same day as West Virginia v. Barnette, the court released its decision in Taylor v. Mississippi, deciding that the state could not punish individuals for encouraging students and others who attempt "to create an attitude of stubborn refusal to salute, honor, or respect the national and state flags and governments."

Street v. New York, 394 U.S. 576 (1969)

With this case, the court overturned the conviction of veteran and Bronze Star honoree Sydney Street, who burned his flag in protest after learning that civil rights activist James Meredith had been shot.

Although the case marked the first opportunity for the court to deal with the actual destruction of a flag, the justices declined to consider the legalities of flag desecration.

But the court determined that the New York statute under which Street had been convicted was unconstitutionally applied because it permitted the veteran to be punished merely for speaking defiantly about the American flag.

Among the dissenters: Hugo Black, one of the court's leading champions of the First Amendment.

"It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense," he wrote. "It is immaterial to me that words are spoken in connection with the burning."

Smith v. Goguen, 415 U.S. 566 (1974)

In this case, the court overturned the conviction of a teenager who wore a flag patch on his pants, determining that a Massachusetts law prohibiting "contemptuous" use of the flag was vague.

Justice Lewis Powell, writing for a 6-3 majority, said such flag contempt statutes should be considered void on vagueness grounds because what one person may deem contemptuous another may consider art. While Powell said he wouldn't consider the patch art, it could hardly be contemptuous since flag-wearing had become a fashion statement.

Although Justice Byron White agreed with the judgment, he said in a concurring opinion that he didn't see any vagueness in the law. He wrote that he would not hesitate in affirming a conviction if the defendant had mutilated, defaced or trampled upon the flag. But he said a conviction for treating the flag contemptuously would punish the communication of ideas.

The dissenting justices agreed with White about the vagueness issue but said the State of Massachusetts had a clear interest in preserving the integrity of the flag. Justice William Rehnquist said such an interest would even prohibit those who buy a flag from mutilating it.

"For what they have purchased is not merely cloth dyed red, white and blue, but also the visible manifestation of two hundred years of nationhood," Rehnquist wrote.

Spence v. Washington, 418 U.S. 405 (1974)

A few months after Smith v. Goguen, the Supreme Court unveiled its decision in another flag-related case, this one involving a college student in Washington who hung outside his apartment window an upside-down flag with a peace symbol attached to it.

The state didn't charge the student under the state's flag-desecration act but under its "improper use" statute. The student was convicted and sentenced to 90 days in jail, with 60 days suspended.

The Supreme Court overturned the conviction, saying that while the state had a legitimate interest in punishing the improper use of government-owned flags, it couldn't show one for such use of a privately held one.

"It may be noted, further, that this was not an act of mindless nihilism," the court wrote in a per curiam opinion. "Rather, it was a pointed expression of anguish by appellant about the then-current domestic and foreign affairs of his government. An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it."

The court reiterated its decision in West Virginia School District v. Barnette in saying that for some the flag stands as a symbol of patriotism while for others it carries, in varying degrees, a different message.

But as with previous flag cases, this one wasn't unanimous.

Justice William Rehnquist, in a dissent joined by Chief Justice Warren Burger and Justice Byron White, wrote that state laws serve a genuine government interest and don't infringe on free speech. "It simply withdraws a unique national symbol from the roster of materials that may be used as a background for communications," Rehnquist wrote.

Texas v. Johnson, 491 U.S. 397 (1989)

When the court agreed to hear Texas v. Johnson, it decided for the first time to address the issue of flag desecration head-on. And in its decision, the court determined that burning the U.S. flag is a constitutionally protected form of free speech.

In the case, Texas officials arrested Gregory Johnson under the state's flag-desecration act after he participated in a political rally in which an American flag was burned. Although the officials conceded the action constituted speech, they said the state had a legitimate interest in protecting the flag.

But Justice William Brennan, in writing for the 5-4 majority, said that none of the high court's precedents suggested that the government may foster a particular view of the flag by prohibiting expressive conduct relating to it.

Even U.S. v. O'Brien, the draft-card case that established a balancing test between government interest and free speech, offers no justification for such a law, Brennan wrote.

"We would be permitting a State to 'prescribe what shall be orthodox' by saying that one may burn the flag to convey one's attitude toward it and its referents only if one does not endanger the flag's representations of nationhood and national unity," he wrote.

The court determined that other actions, other than laws, existed to persuade those who desecrate the flag that they are wrong.

"We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting that flag that burns," Brennan wrote. "We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

But Justice John Paul Stevens said allowing people to burn a unique national symbol isn't worthwhile just to maintain freedom of speech.

"That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression — including uttering words critical of the flag — be employed," Stevens wrote.

U.S. v. Eichman, 496 U.S. 310 (1990)

Within months of the court's decision in Texas v. Johnson, Congress passed the Flag Protection Act, designed to punish anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any U.S. flag."

Soon after the acts passage, state and federal officials arrested a number of flag-burning protesters nationwide, including some who had burned a flag on the steps of the U.S. Capitol. The court combined the appeals into this one case.

Although Congress attempted to craft a flag-protection measure that wouldn't infringe on free expression, the court, with another 5-4 majority, determined that the lawmakers' intent was to suppress free expression.

"The precise language of the Act's prohibitions confirms Congress' interest in the communicative impact of flag destruction, since each of the specified terms — with the possible exception of 'burns' — unmistakably connotes disrespectful treatment of the flag," Justice William Brennan wrote again for the majority.

In a dissent, Justice John Paul Stevens said the new law passes the O'Brien test because the government showed a legitimate societal interest for the law and that it doesn't interfere with other venues for free speech.

Stevens wrote further that the symbolic value of the American flag had eroded over the past decades and wasn't even as strong as it was after the court's decision in Texas v. Johnson.