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The Miami Herald

September 10, 1989 Sunday


FINAL EDITION

A SYMBOL-MINDED SOLUTION
BYLINE: JOEL ACHENBACH Herald Staff Writer
SECTION: TROPIC; Pg. 8
LENGTH: 5203 words

I call the number of the man who burned the flag, and a woman's voice answers, "Hello,
Refuse-n-Resist," the same way someone would say, "Hello, Taco Bell." The woman quickly
explains that the Emergency Committee to Stop the Flag Amendment and Laws -- of which
the man who burned the flag is the primary spokesman -- is for the moment sharing office
space with Refuse and Resist, which she describes as "an organization whose purpose is to
oppose the entire spectrum of what they call the Resurgent America, from the war on drugs
to the attack on abortion rights to resurgent racism."
The entire spectrum; yes, it's a heavy load, being radical and Left. You almost feel sorry for
them, burdened not only with the weight of fanatical seriousness but also that woeful
vocabulary, words like imperialism, hegemony, exploitation, subjugation, indoctrination,
crypto-fascism, oppression, repression, suppression, as though the revolution cannot be
waged without the mastering of multisyllabic political terms.
Gregory Lee Johnson eventually comes to the phone. He's the flag-burner, the guy who
torched Old Glory at the 1984 Republican National Convention, chanting "the red, white and
blue, we spit on you," in a moment that would have been mercifully forgotten had Texas
authorities not made a federal case out of it and lost.
He has a calm, soothing voice, and he calmly and soothingly proceeds to explain the urgent
need for violent revolutionary war in America.
"I definitely think it's going to come down to a revolutionary war. The whole system as it
exists today is founded on exploitation and oppression, and I don't think any change for the
better is going to come until it's all overthrown. I think it's completely worthless. By burning
the flag, we were making a statement of thorough contempt and defiance toward the
Empire."
As a member of the Revolutionary Communist Youth Brigade (communist subcategory:
Maoist), Johnson thinks the "highest pinnacle" of governmental excellence was achieved by
China during the Cultural Revolution of the 1960s and 1970s, when in the name of
ideological purity hundreds of thousands of Chinese, particularly intellectuals, were
murdered, tortured, paraded in dunce caps before jeering throngs, and forced into "reeducation camps" in the countryside to perform hard labor and undergo brain-washing.
Johnson has a more bucolic vision of those days than the history books: "Mao encouraged
people to go to the countryside, to work with the peasants. They developed different

cultural forms, like dance troupes, opera troupes. The peasants would discuss works of art.
It's documented, there's pictures, it's like, it happened."
Now then, let's exercise some freedom of the press. Gregory Lee Johnson, with all due
respect, is a blithering idiot. A slime trail across the face of humanity. In a saner world, we
could just ignore him, cast him back to obscurity, back to his fantasy world. Begone, fool.
Yet he lingers like a bad stain.
Because of him, the President of the United States now wants to change the Constitution of
the United States.
Because of him, the nation is prepared to put an asterisk on the First Amendment.
Because of him, we are going to backtrack on the Bill of Rights just when it approaches its
200th anniversary.
This is starting to look like a Bad Idea of historical ranking. The competition is fierce.
Bleeding the sick, the anemic and the unusually pale was a Bad Idea. The Maginot Line was
a Bad Idea, as was the Nazi invasion of Russia. Putting "Revolution #9" on The White Album
was a Bad Idea. New Coke was a Bad Idea. All Bad Ideas start out as someone's idea of a
Good Idea, like Prohibition. When everyone realized they had turned the booze industry
over to gangsters, the so-called Noble Experiment became just another Bad Idea, redeemed
only to the extent that it has served (until recently) to remind people how foolish it is to
tinker with the Constitution.
Now comes the flag amendment, which has multiple symptoms of Bad Idea-ness.
The proposed amendment suffers from the classic Swine Flu Vaccine syndrome of solving a
problem that doesn't really exist. The flag is not in jeopardy. Flag-burning isn't a persuasive
political act; there are no reports of people renouncing their citizenship because they saw
the Stars-and-Stripes go up in smoke. Besides, flag-burning, for the most part, went out
with bellbottom jeans. A spate of flag-burnings in recent weeks only reflects the fantastic
press-coverage possibilities because of the amendment drive. Amending the Constitution to
stop flag- burners is like burning down your house to kill the roaches.
But let's forget the immediate practical concerns. There is a principle at stake. Let's call it
The American Way.
In a world where millions live with the knowledge that you can be tortured for criticizing the
despot-of-the-moment, America remains one of the few places where you can say pretty
much anything.
This country was founded by immigrants who suffered bitterly in order to escape Europe's
interminable history of rulers who murdered, tortured, imprisioned, robbed and defrauded
at will. When it came time to establish a government of their own, the Americans
approached the task warily, fearful of the power they were about to create. They insisted
that the Constitution not only contain internal checks and balances but also a Bill of Rights
that explicitly stated things the government couldn't do.
The first thing it couldn't do was pass any laws abridging the freedom of speech. Some
thought this notion too radical, that freedom was fine in theory, but in practice a Republic
had to be able to defend itself against internal criticism or be doomed to imminent collapse.
History proved otherwise.

No other constitutional government in the world has lasted as long.


In other words, the system ain't broke. So why is anyone trying to fix it? Because, as much
as people like to be able to speak freely, they hate to hear stuff they don't agree with.
When the Supreme Court ruled 5-4 in June that a Texas law prohibiting flag desecration was
unconstitutional, the American people stomped and hollered. One poll showed that 72 % of
the public disagreed with the decision. The politicians leaped into action and vowed to skirt
the court's wacky, wrong-headed decision via a constitutional amendment.
People do not like the Supreme Court. They see it as a collection of doddering white-haired
elitists who pad about in book-lined chambers thinking up sneaky ways to fulfill their own
eccentric agendas, and spring freaks and baby-killing psychos from prison. Supporters of
what would become the 27th Amendment think they are being forced to draw the line on
the First Amendment because the Supreme Court -- that lunatic crew -- refused to draw any
lines at all.
But a closer look, for those who can calm down enough for their eyes to defog, will show
that the decision in Texas v. Johnson is far from lunatic, from from libertine -- in fact you
could call it conservative. It is not a quirk that two impeccably conservative justices joined
the dwindling liberal camp on this one.
They braved the inevitable public outcry to defend not just the First Amendment, but more
importantly, half a century of sweat that the Court has poured into trying to figure out what
free speech means. They stuck to precedent despite what they knew would be howling gales
of public resentment. They once again confirmed what the Court has been saying through
liberal and conservative incarnations: The government can never be in the business of
outlawing ideas simply because people don't like them.
How can flag-burning be an idea? This is just one of innumerable free speech subtleties the
court has wrestled with. Can you yell "Fire!" in a crowded movie house, and if not, why not?
When does critical speech become libelous? When does heckling become a suppression of
someone else's right to speak? Can you ban handbills as a means of preventing litter? What
is obscenity?
Is free speech merely a practical means of running a democratic society, or is free speech
an end unto itself?
Does the First Amendment give people the right to say or do anything?
Not at all. Far from it. Certain types of speech are routinely repressed for the good of
society. Chief Justice William Rehnquist has written, "Citizens are not completely free to
commit perjury, to libel other citizens, to infringe copyrights, to incite riots, or to interfere
unduly with passage through a public thoroughfare. The right of free speech, though
precious, remains subject to reasonable accommodation to other valued interests."
Let's take a few hypotheticals. You're a loudmouth radical and you decide to cuss at a local
police officer. You really lay into him. That's your right, right? Not always, says the Court.
This is the lesson of Chaplinsky v. New Hampshire, a decision in 1943. Walter Chaplinsky
stood on the sidewalk near the Rochester, New Hampshire city hall and screamed at a police
officer, "You are a God damned racketeer" and a "damned Fascist and the whole government
of Rochester are Fascists or agents of Fascists." He was convicted of offensive speech in a
public place. Eventually, the Supreme Court ruled against Chaplinsky, establishing what is
now called the "fighting words" doctrine, which states that the First Amendment does not

protect words that "by their very utterance inflict injury or tend to incite an immediate
breach of the peace."
"Fighting words" is related to another Court test of free speech -- the "clear and present
danger" doctrine. In 1919 the Court (in one of its repressive moods) upheld the conviction
under the Espionage Act of a man named Schenk, who had mailed flyers to draftees urging
them to dodge the draft. Schenk hadn't actually disrupted the draft, but the Court
determined that the federal government could legally prosecute him because there was a
"clear and present danger" that his actions would impede a legitimate governmental
interest, namely, raising an army.
But within a decade, the Court tried to make sure that "clear and present danger" didn't
become a catch-all loophole in the First Amendment. Justice Louis Brandeis admonished,
"No danger flowing from speech can be deemed clear and present, unless the incidence of
the evil apprehended is so imminent that it may befall before there is opportunity for full
discussion."
"Fighting words" and "clear and present danger" are obviously vague notions, but that
vagueness serves a purpose. It requires courts to scrutinize the purportedly illegal speech
on a case-by-case basis. There is no shortcut, as there would have been if the Supreme
Court had outlawed a list of epithets, like "damned fascist," or had outlawed specific actions
-- like flag-burning.
How about this: You are a long-haired radical, the country is in a war of questionable
morality overseas, and you protest this by burning your draft card. It's just like burning a
flag, right?
Wrong. On the morning of March 31, 1966, David Paul O'Brien and three friends burned
their draft cards on the steps of the South Boston Courthouse. A crowd gathered and then
attacked. An FBI agent ushered O'Brien to safety inside the courthouse, then charged him
with destroying his draft card. Convicted, he appealed to the Supreme Court and lost. The
Court ruled that Congress' right to raise and support armies outweighed O'Brien's right of
free speech. Government can limit speech as a side- effect of protecting some other
interest. How important must that other interest be? The Court came up with a list of
words: Compelling. Substantial. Subordinating. Paramount. Cogent. Strong. It's sort of like
the Boy Scout's Motto, rendered in legalese.
A town council can prohibit distribution of handbills as a way of getting rid of a severe litter
problem. The litter law makes no mention of the message on the handbills. But what if the
town council tries to prohibit the spread of handbills that advocate white supremacy, or
black civil rights? Nuh-uh. Decision after decision, the one thing that the Court has
consistently said is that no government law is constitutional if it is directed at preventing a
specific kind of idea.
Can a school board require schoolchildren to salute the flag every morning? No. Such a case
arose in West Virginia in 1942. The school board said that any students who did not salute
the flag would be expelled. The Supreme Court, siding with a group of Jehovah's Witnesses
who have a religious objection to saluting "graven images" such as the flag, struck down the
law. The Court said, "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."
This fixed star is what the people who support a flag amendment would like to unfix.

Four times in the past two decades, the Supreme Court has faced difficult cases involving
flag desecration.
On the afternoon of June 6, 1966, Sidney Street, a black transit worker in New York City,
heard on the radio that civil rights leader James Meredith had been shot by a sniper in
Mississippi. "They didn't protect him," he said to himself, and he pulled a neatly-folded, 48star American flag out of a drawer. He kept it to display on national holidays. This time, he
decided to burn it. He went down to a nearby intersection, lit it with a match and dropped it
on the sidewalk. "We don't need no damn flag," he said. A policeman approached and asked
if that was his flag on the ground. "Yes, that is my flag. I burned it. If they let that happen
to Meredith we don't need an American flag."
The policeman arrested Street for the crime of "Malicious Mischief in that (he) did wilfully
and unlawfully defile, cast contempt upon and burn an American Flag."
The Supreme Court overturned Street's conviction because the state, in prosecuting him,
made frequent reference to his comments as he burned the flag. The Court said the words
themselves were protected by the First Amendment, and shouldn't have been used against
him. But could the state stop flag- burning, period? The Court didn't say.
On January 30, 1970, two cops in Leominster, Mass. arrested a young man named Valarie
Goguen for wearing a four-inch by six- inch flag on the seat of his pants. Goguen had just
been hanging out on the street. No protest, no disturbance. He was charged and convicted
under a state law saying no one can "publicly treat contemptuously the flag of the United
States." The Court sided with Goguen, saying that the vagueness of the 'statute (doctrines
can be vague, but not statutes) was unconstitutional. What did "contemptuously" mean?
On May 10, 1970, Harold Omand Spence of Seattle flew an American flag out his window
upside down with a peace symbol affixed to it. This was Spence's way of protesting the war
in Cambodia and the student killings at Kent State. He was arrested and convicted under a
statute prohibiting anyone from placing "any word, figure, mark, picture, design, drawing or
advertisement of any nature upon any flag, standard, color, ensign or shield of the United
States." The Supreme Court, again, threw out the conviction, but it pussyfooted around the
main issue, whether the flag should enjoy some special protection. The crucial passage in
the majority opinion stated that the State of Washington's interest in protecting the flag
from desecration was not "significantly impaired" by Spence's action. You see, the peace
symbol could be removed. What if he had burned the flag? The Court, again, didn't say.
Understandably, this irked Justice Rehnquist, the scholarly conservative. In his dissent he
wrote, "The suggestion that the State's interest somehow diminishes when the flag is
decorated with removable tape trivializes something which is not trivial. The State of
Washington is hardly seeking to protect the flag's resale value."
Which brings us to Texas v. Johnson.
During the 1984 Republican National Convention, Gregory Lee Johnson and his fellow
Maoists held what they called an "anti- patriotic" rally outside a Dallas courthouse,
culminating in the immolation of the American flag. Police arrested Johnson for "desecrating
a venerated object."
He was convicted and sentenced to a year in jail. He appealed and won before the Texas
Court of Criminal Appeals. Then the State of Texas appealed to the Supreme Court.

During oral argument, Justice Sandra Day O'Connor asked the attorney from Texas, Kathi
Alyce Drew, "Could Texas prohibit the burning of copies of the Constitution, state or
federal?"
"Not to my knowledge, Your Honor," Drew said.
"There wouldn't be the same interest in symbolism?"
"No, Your Honor."
"Why not? What about the state flower?" asked Justice Antonin Scalia.
"There is legislation, Your Honor, that does establish the bluebonnet as the state flower."
"I thought so," Scalia said.
"It does not seek to protect it," Drew said.
"Well, how to you pick out what to protect?" asked Scalia. "If I had to pick between the
Constitution and the flag, I might well go with the Constitution."
Which shows you where the Supreme Court is coming from.
The primary legal question in the Johnson case, as in past free speech cases, was whether
the state had any interests that outweighed Johnson's right to express himself. Texas said
yes, citing two specific interests. The first was that it needed to prevent a breach of the
peace. But there was neither a breach of the peace nor any sign that the peace was about
to be breached. Texas offered the testimony of three people who said they were offended by
the protesters' actions, but none contemplated taking a swing at anyone. (Ultra-megaconservative congressman Robert Dornan has said that in the future, Americans should
assault anyone who burns a flag, so it can be a breach of the peace.)
Now for the second interest. Texas claimed that it needed to preserve the flag as a symbol
of nationhood and national unity.
But did Johnson really damage The American Flag, or just one particular American flag? Was
America weaker? Patriotism diminished? Was the threat posed by Johnson's little melodrama
grave enough to justify the suspension of his right to express himself? No, said five justices.
This majority view spanned the left and right flanks of the Court. Scalia and Anthony
Kennedy, two extremely conservative justices, teamed with moderate Harry Blackmun and
liberals Thurgood Marshall and William Brennan to strike down the Texas law. Once again,
the Court made it clear: There are no favorites in a free country. The government can't say
it's OK for the American Legion to burn a dirty flag but not the Revolutionary Maoist SpittleSpewing Bonehead Brigade.
Brennan wrote the majority opinion: "To conclude that the Government may permit
designated symbols to be used to communicate only a limited set of messages would be to
enter territory having no discernible or defensible boundaries. Could the Government, on
this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the
Constitution? In evaluating these choices under the First Amendment, how would we decide
which symbols were sufficiently special to warrant this unique status?"
The majority ruling in Texas v. Johnson held no surprises, destroyed no hallowed tenets of
jurisprudence. It is the dissent, written by Chief Justice Rehnquist, that voyages into the

uncharted legal abyss where there are few precedents to shine a guiding light. A measure of
his desperation is that he spends the first third of his lengthy opinion citing the words to The
Star Spangled Banner, a poem by John Greenleaf Whittier and various other paeons to Old
Glory. Deep into the dissent, we are still trudging through the history books -- " . . . Marines
fought hand-to-hand against thousands of Japanese . . . reached the top of Mount Suribachi
. . . successful amphibious landing of American troops at Inchon was marked by the raising
of an American flag within an hour of the event . . . In 1949, Congress declared June 14th
to be Flag Day . . . The flag has appeared as the principal symbol on approximately 33
United States postal stamps . . . " and so on -- a wild, thrashing performance that
concludes, with stunning moxie, by calling Brennan's majority opinion "a regrettably
patronizing civics lesson."
Kennedy turned out to be the key figure in the decision. He was appointed to the Court after
Judge Robert Bork's nomination was rejected. Bork would have tipped the decision the other
way. He recently testified, "We know that the physical desecration of the American flag is
like the use of obscenities or of indecent behavior to express an idea. We know that because
of the wave of public outrage that followed the Supreme Court's decision in Johnson. We
know that because 48 states and the United States had enacted laws prohibiting the
physical desecration of the flag."
Obscenity. Oh yes. Let's say you're a pornographer. You want to publish a magazine that
features photographs of humans and (this is very hypothetical) bison engaging in firstdegree felonies against nature. Do you have a constitutional right? No. The Court has said
obscenity enjoys no First Amendment protection, because it is "no essential part of any
exposition of ideas."
What's "obscene"? The Court, a bit befuddled as are we all, says something is obscene if it
depicts sexual conduct in a way lacking serious artistic, political or scientific value and is
likely to offend the average person who applies "contemporary community standards," a
phrase that sets the Supreme Court record for vagueness. So now the patriots ask, why
can't flag- burning be considered "obscene"? For the same reason that the burning of a
cross by the KKK isn't "obscene": There's no sex involved. The Court has declined to allow
communities to ban everything they find offensive; there must be a sexually prurient
element.
What Bork is talking about is not "obscenity." What he is advocating is a strict form of
majority rule: If the majority doesn't like an idea, it can be ruled obscene. By this rationale
we ought to be able to ban racist and sexist speech -- unless, of course, the majority of
people like racist and sexist speech, in which case we can ban anti-racist and anti-sexist
speech.
Fortunately, the people who wrote the Constitution appointed the Justices for life specifically
to protect them from electoral reprisal. But the Court can do nothing about a constitutional
amendment -- a form of superlaw that obliterates everything else. This is the soft spot in
the Constitution, its vulnerability to tides of public opinion.
Surfing those waters is the President of the United States. Though no one can question the
sincerity of his patriotism, it is remarkable how he has exploited the flag first to get elected
and then to strike a chord in an electorate that was uninspired by the first six months of his
presidency. Last year, Bush attacked Dukakis for vetoing a bill that would have required
schoolchildren to say the pledge of allegiance, and for being a "card-carrying member" of
the American Civil Liberties Union. Bush knows: Americans like civil liberties for themselves
but not for communists, hippies, prevaricators, mouth-breathers, etc.

Bush initially reacted with restraint to the decision in Texas v. Johnson. Then he had lunch
with Lee Atwater, the Republican party boss who had been the architect of Bush's nastier
campaign tactics. Within hours, Bush was back in the flag-waving business.
"What that flag embodies is too sacred to be abused," President Bush said.
The proposed amendment would read, "The Congress and the States shall have power to
prohibit the physical desecration of the flag of the United States." For those uncertain of the
word desecration, House Minority Leader Bob Michel offered a simple dictionary definition:
"to treat an object of veneration irreverently or contemptuously."
Of course, "irreverence" and "contempt" are words that differ in degree. Contempt is a
strong feeling of loathing, of holding something as worthless and beneath notice.
Irreverence is the lack of reverence, which is defined as a feeling of love and respect; to
regard something as sacred.
Let's not nitpick. The idea is clear: When we fix the Constitution, Gregory Lee Johnson can't
burn any more flags. As for other acts that might be considered desecration -- painting your
car red-white-and-blue and driving it over a cliff, wearing a flag G-string, using flags to
decorate toothpicks for spearing sliced weenies -- well, the government "shall have power"
to sort that out. The whole point of the Bill of Rights was that government shall not have
power to do certain things, but you see what that can lead to: Too much speech.
The attack on flag-burners is really an ideological fight against moral decay in our society,
against the evil forces of relativism that have eroded a sense of absolutes, like the absolute
good of the flag, family, God, baseball, station wagons, milk and cookies, parades down
Main Street, Spam, leaded premium, all that great Americana.
Cal Thomas, the conservative newspaper columnist, told Tropic, "How are you going to
inculcate love and respect for one's nation when one constantly allows those values and
traditions, which Jefferson called self-evident truths, to be trashed? We are in an erosion
process morally and spiritually in America . . . It's the slippery slope mentality. The thought
is always father of the deed. Crack cocaine didn't appear in the streets until we achieved a
tolerance for marijuana. And even before that, alcohol. Heavy metal didn't appear on the
scene until after Elvis Presley and Fats Domino. If you begin to accept the little things, then
it greases the skids."
Great Idea: We should constitutionally prohibit Guns 'n' Roses from making any more music
videos. But to be fair we should also outlaw the Donny Osmond comeback. The problem, of
course, is that the picket-fence version of America that Cal Thomas cherishes is not
enforceable. You can't make people listen to Pat Boone.
The breast-beating patriots are sensitive to charges that they are trying to amend the Bill of
Rights for the first time in 200 years. They say, hey, let's be reasonable here. Even if flagburning is a form of speech -- which we don't readily admit -- why can't we do without it?
Why not agree to make an exception? What's the big deal?
The big deal is this: If this amendment is passed, America will have crossed a fire break.
For the first time, the Constitution will have criminalized a thought.
The immediate practical effect might not be noticeable. No one is going to appoint a
Secretary of Thought to the President's Cabinet. At the local level, police officers will be able
to arrest people they think are desecrating the flag, but they've been doing that for years.

The real danger is this: The Supreme Court would no longer be able to rest comfortably on
the notion that the Constitution directs them never to regulate the thinking of the public. Is
this a step toward freedom? Is this really what conservatives, believers in less government,
want for their country? Or is it just a Bad Idea?
The Democrats, pandering shamelessly, have tried to head off the flag amendment (which
they know is a Bad Idea) with a Bad Idea of their own: Making a criminal out of "whoever
knowingly mutilates, defaces, burns, maintains on the floor or ground, or tramples upon any
flag of the United States."
The wording is careful. No reference to "desecration" is included. The thinking is that this
will pass court muster, because it is not "viewpoint-discriminatory."
The congressmen are right about one thing: The Supreme Court will probably uphold the
law. The Johnson decision, like previous rulings, contains language that indicates that the
Court would uphold a statute prohibiting flag-burning so long as there was no stipulation as
to message or motive.
But the legislative alternative to the flag amendment will probably have to define "flag"
more precisely. What's a flag? There is no such thing as the American flag. It is merely a
design, a pattern of 13 stripes, seven red and six white, and 50 stars on a field of blue.
Would it be illegal to burn a flag with only 49 stars? What about a flag only an inch high?
What about a photo of a flag?
Constitutional scholar Laurence Tribe, though opposed to either an amendment or a law,
claims that the government protects emblems all the time, and therefore the court could
find plenty of precedent to uphold a legislative statute. Tribe reels off a list: Government
protects gravesites, government prohibits the sale of Eagle feathers, government has
awarded the exclusive use of the Olympic emblem and Olympic name to the United States
Olympic Committee. He also cites the effort in Austin, Texas to punish whoever poisoned the
Treaty Oak, a tree that took root before the time of Columbus.
This looks like a case of apples and oranges and pears and lemons. A gravesite is private
property. To give the USOC the exclusive use of the Olympic name is hardly a free speech
infringement, any more than saying that only Sears can call itself Sears. Banning trade in
eagle feathers comes closest to protecting a symbol, since that was Congress' primary
intent, but there again, what is being protected is a tangible, relatively scarce resource.
There's no law against selling imitation eagle feathers. Same with the Treaty Oak. It's a real
object. The public's right to conserve scarce physical landmarks outweighs the right to
"express" oneself by poisoning a tree. We don't allow people to kill endangered species but
they can do anything they want to stuffed versions of the animal.
This same confusion of symbol vs. reality inspired Justice John Paul Stevens, in dissenting
from the Brennan opinion, to write, "The creation of a federal right to post bulletin boards
and graffiti on the Washington Monument might enlarge the market for free expression, but
at a cost I would not pay." This echoes a comment years earlier by Justice Byron White,
another dissenter in the Johnson decision: "There would seem to be little question about the
power of Congress to forbid the mutilation of the Lincoln Memorial . . . The flag is itself a
monument, subject to similar protection."
These are good lines, but intellectually vacant. The Washington and Lincoln monuments are
real objects owned by the federal government. Obviously it is illegal to desecrate those
public properties -- just as it would be to destroy the flags that fly over them. The question

is, would justices Stevens and White outlaw the desecration of a model of the Washington
Monument or a model of the Lincoln Memorial? Let's hope not.
So where is the true precedent for protecting the flag? There is none. It's new territory. It'll
be our first governmentally-enforced sacred cow.
The American people can support this if they want. No one ever said that government by
the people and for the people cannot make its own rules. America has an absolute right to
put into law a prohibition against irreverence and contempt toward the flag.
Part of being a free country is that you are allowed to decide to no longer be a free country.

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