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
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.
School District v. Gobitis
Smith v. Goguen
Spence v. Washington
v. New York
Stromberg v. California
U.S. v. Eichman
Virginia State Board of Education v. Barnette; Taylor v. Mississippi
v. Nebraska, 205 U.S. 34 (1907)
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
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.
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.
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."
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.
v. California, 283 U.S. 359 (1931)
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.
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.
wrote that the state law was "so vague and indefinite as to permit
the punishment of the fair use of this opportunity."
cite Stromberg as the first in which the Court recognizes
that protected speech may be nonverbal, or a form of symbolic expression.
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.
School District v. Gobitis, 310 U.S. 586
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
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.
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,"
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.
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
Jackson, who had joined the court only two years earlier, wrote
the decision, echoing the free-expression sentiments of Stromberg
"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.
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
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.
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.
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."
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
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
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."
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.
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.
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
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,"
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.
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
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.
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.
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
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.
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."
John Paul Stevens said allowing people to burn a unique national
symbol isn't worthwhile just to maintain freedom of speech.
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,"
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.
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
"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.