Flag Burning as Protest Upheld : High Court Takes Strong Stand for Free Expression in Two Cases

By DAVID G. SAVAGE

June 22, 1989 12 AM PT

Times Staff Writer

WASHINGTON — The Supreme Court, taking a strong pro-First Amendment stand in two tough tests of free expression, ruled Wednesday that flag burning is protected by the Constitution as a form of political protest.

And, in a second decision, the justices said that a newspaper may not be punished for reporting the name of a rape victim that was obtained from police.

The two rulings suggest that the high court is continuing to take a broad view of the Constitution’s guarantee of freedom of speech and the press, even as it cuts back on earlier civil rights positions. Two of former President Ronald Reagan’s appointees--Justices Antonin Scalia and Anthony M. Kennedy--joined the majority in Wednesday’s rulings.

The flag-burning case, which began as a symbolic radical protest at the 1984 Republican National Convention in Dallas, became a classic test for the justices over the true meaning of the flag and the First Amendment.

Symbol of Free Speech

The five justices in the majority said that the flag symbolizes the nation’s commitment to free speech and debate, which requires protecting even “offensive” and “disagreeable” political ideas.

“The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong,” Justice William J. Brennan Jr. wrote for the majority.

Chief Justice William H. Rehnquist, in dissent, said that he could not fathom how a government that can order soldiers to “fight and perhaps die for the flag” may not punish persons for “the public burning of the banner under which they fight.”

Wednesday’s ruling was a surprise to most civil libertarians and appears to strike down as unconstitutional similar laws enacted by the federal government and every state except Alaska and Wyoming making it a crime to burn or desecrate a flag.

“The death of civil liberties was premature,” said University of Colorado Law Dean Gene Nichol, a First Amendment expert. “This was a decision that the Warren Court was scared to make.”

During the 1960s, the Supreme Court and then-Chief Justice Earl Warren dodged rulings on whether burning a flag was a protected form of protest. Twenty years later, when radical protests have faded and patriotic support for the flag has reached a peak, a more conser vative court has decided to settle the question.

The case began during the week that Republicans gathered in Dallas to nominate Reagan for a second term. A small band of radical protesters marched through the streets chanting: “America, the red, white and blue. We spit on you.” They seized a flag from a bank building, set it on fire and watched it burn. For this act, a protest leader, Gregory Johnson, was arrested, convicted, fined $2,000 and sentenced to one year in jail for violating Texas law.

Johnson’s case reached the Supreme Court last October while Republican presidential candidate George Bush was making the flag a key campaign issue and was denouncing his Democratic opponent, Massachusetts Gov. Michael S. Dukakis, for having vetoed as unconstitutional a law mandating that all school children be required to recite the Pledge of Allegiance each day.

Civil libertarians and political radicals feared that the current conservative court would use the case to cut back on the right to protest mainstream views. Instead, the high court reaffirmed its 40-year-old doctrine that free expression is protected so long as it does not create a clear danger of “imminent lawless action.”

Johnson had engaged in an “overtly political” act of “symbolic speech,” which, while offensive to many, did not threaten to “incite a riot,” Brennan wrote for the majority.

“If there is a bedrock principle underlying the First Amendment,” he added, “it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Seen as Strengthening Flag

The 83-year-old Brennan, who read much of his opinion from the bench Wednesday, said that the American flag has a “deservedly cherished place in our community” but that the flag would be “strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects and of the conviction that our toleration of criticisms such as Johnson’s is a sign and source of our strength.”

Kennedy, although joining the opinion, said in a concurring statement that he found the outcome “distasteful” but was nevertheless compelled to concur by the “pure command of the Constitution.”

“The hard fact is that sometimes we must make decisions we do not like,” Kennedy said.

In dissent, Rehnquist derided Brennan for giving a “regrettably patronizing civics lecture” on free speech and the flag. He argued that, although protesters are entirely free to speak ill of the President, the Republican Party or the flag itself, they are not free to burn a flag.

“The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our nation,” Rehnquist wrote. “The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas.”

In a second eloquent and emotional dissent, which was read from the bench, Justice John Paul Stevens said that creating a right to put “graffiti on the Washington Monument” or “spray paint on the Lincoln Memorial . . . might enlarge the market for free expression, but at a cost I would not pay. Similarly, in my considered judgment, sanctioning the public desecration of the flag will tarnish its value . . . . 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.”

Joining Brennan and Kennedy to form the majority in the case (Texas vs. Johnson, 88-155) were Justices Thurgood Marshall, Harry A. Blackmun and Scalia.

Liberal Activists Pleased

Liberal legal activists, who were angry at the court last week because of its rulings on civil rights, said that they were pleased with the decision Wednesday.

“Today’s ruling is a victory for free speech. Offensive or not, those who burn the flag to express their views are exercising a right that our founding generation fought a revolution to secure,” said Arthur Kropp, president of People for the American Way.

Radical lawyer William Kunstler of the Center for Constitutional Rights, who defended Johnson, said that the ruling prohibits “the state from making the flag a religious icon. It holds (that) our Constitution allows the people to choose and express whatever meaning they choose for the flag, even where that expression is deeply critical of the country for which it stands.”

Lawyers representing the Veterans of Foreign Wars and AMVETS called the ruling “an outrage.”

Carte Blanche to Protesters

“Americans have a unique reverence for the flag, and the court seems to have treated it as just another symbol,” said Alan Slobodin of the Washington Legal Foundation, which filed a court brief for the veterans’ groups. “This opinion appears to give carte blanche to all kinds of extreme protest, whether it is KKK demonstrators burning a picture of Martin Luther King or Nazis marching in Skokie.”

In the past, the court has said that police may limit protests and marches to ensure public safety but that they may not ban a form of protest simply because of its disagreeable message.

In the other First Amendment case, the court said that a news organization may not be punished for accurately reporting the name of a rape victim lawfully obtained from police.

The 6-3 vote reversed a Florida court verdict awarding $97,500 to a Jacksonville woman whose name was reported, inadvertently, by a small weekly newspaper.

Florida makes it a crime to release or publish the names of rape victims. In this case, the police mistakenly released the name, and the newspaper, in violation its own policy, printed it.

The case was seen as a potentially major test of a newspaper’s constitutional right to print truthful information versus a victim’s right to privacy. However, Justice Marshall said that the court’s ruling is “limited.” Because the government itself had released the information, the justices concluded that the paper could not be fined for printing it.

The opinion (Florida Star vs. B.J.F., 87-329) adheres to a series of rulings from the late 1970s upholding the news media in printing court documents, but it stops short of giving the press absolute immunity when it prints accurate information. Justices Byron R. White and Sandra Day O’Connor joined Rehnquist in the dissent.

In other action Wednesday, the court:

--Ruled, 8 to 0, that the American Bar Assn. may continue to meet secretly and give advice to the Justice Department on potential judicial candidates (Public Citizen vs. Justice Department, 88-429). Both liberal and conservative legal groups have said that the ABA should be considered an official advisory body and hold open meetings.

--Ruled, 5 to 4, that railroads may sell off parts of their lines without bargaining with their unions (P&LE; vs. Railway Labor Executives, 87-1859).

OPINION EXCERPTS--Portions of majority and minority opinions. Page 19