8 Major Decisions in the History of the American Flag
June 14 marks Flag Day, the Congressionally-sanctioned holiday that celebrates the United States’s primary symbol, the American flag. Historically, many laws have been established in order to pay respect to Old Glory. As a result, conflicts about the treatment of the stars and stripes have gone all the way to the highest court in the land. Let’s take a look back at eight major Supreme Court decisions involving flags:
Nebraska law made selling merchandise with flags or using the flag as an advertising tool. When Halter sold beer bottles with the flag on it, he wound up in court. Rather than using First Amendment justifications (which would prove successful in future cases), he argued that state law should not make stipulations on a federal symbol. The Justices disagreed, and flag “desecration” laws remained intact… for a while, anyway.
Camp counselor Yetta Stromberg was found guilty of having her campers salute a red flag representing communism. At the time, a California law stipulated that displaying a red flag “as a sign, symbol or emblem of opposition to government” was a felony. Appealing the decision all the way to the nation’s highest court, the Justices agreed with Stromberg that the law infringed on her First Amendment rights. The case marked the first time the Supreme Court struck down a state law for violating the First Amendment.
The same year the Pledge of Allegiance was officially adopted by Congress, West Virginia required students and teachers to salute the flag daily, with those who failed to comply being punished or expelled. In a 6-3 vote, however, the Supreme Court decided that forcing kids to salute the flag was unconstitutional. Justice Robert H. Jackson wrote, “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.”
After an assassination attempt was made on civil rights leader James Meredith, citizen Sidney Street burned a flag on a street corner in protest, saying, “If they let that happen to Meredith, we don’t need an American flag.” The state of New York proceeded to find him guilty of burning and speaking contemptuously about the flag. Street appealed, saying that the First Amendment allowed him to say whatever he wanted about the flag, and five Justices agreed. Instead of addressing the flag burning issue (a debate that would linger for two more decades), they focused on the speech part and overturned his conviction since the previous court decision lumped together the speech and flag burning charges together.
Massachusetts teenager Goguen sewed a small U.S. flag to the rear of his pants, and was subsequently arrested for “publicly treat[ing] contemptuously the flag.” Initially sentenced to six months in jail, Goguen won in the Supreme Court when six Justices decided the state law was far too vague and broad to find Goguen’s actions criminal.
Protesting recent U.S. militant action, a college student used removable tape to make a peace sign on an American flag he had on display. He was convicted under a Washington law that forbid adding marks to a flag. Disagreeing with the Washington State Supreme Court, the federal Supreme Court believed the student’s actions to be covered by his First Amendment rights and that this modest and reversible alteration was a reasonable form of protest.
Finally, the flag burning issue was tackled head on. In an act of protest against the Reagan administration, Gregory Johnson burned a flag in front of Dallas City Hall and was later sentenced to one year in jail. In a 5-4 decision, the Supreme Court ultimately found that while burning the flag would be considered offensive speech to many, the Constitution ultimately protects this form of expression.
Following the Texas v. Johnson decision, Congress responded by passing the Flag Protection Act to make burning the flag explicitly illegal. Eichman was one of many charged with subsequently burning flags, so he took the case to the Supreme Court. The Justices agreed with their previous ruling on the issue, declaring that burning a flag is a form of free speech.
Photo Credit: Frydolin