US flags

This page considers flag burning and flag desecration in the USA.

It covers -

• the regime
• studies

     the regime

As the preceding pages indicated, community and court stances on flag burning (and other flag desecration) illustrate tensions between free speech and the 'civic religion' in the US.

As the 2005 Congressional Research Service note (PDF) comments, although there have been recurrent efforts at the federal level to criminalise flag burning, defacing or otherwise dishonouring the national flag has been recognised as protected speech under the First Amendment since 1989 (the Supreme Court decision in Texas v Johnson, 491 U.S. 397) and 1990 (US v Eichman, 496 U.S. 310).

Action in the Senate during June 2006 to prohibit flag burning was unsuccessful.

Justice William Brennan had earlier commented that flag desecration and burning was protected

We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.

Despite that recognition the majority of US states retain flag protection enactments, typically modelled on the jingoistic Uniform Flag Law of 1917 prohibiting desecration of the flag or its use for advertising and publicity purposes, and in practice state/local police forces appear to have restricted attacks through restrictions on disorderly conduct or other offences.

Critics of treating the stars & stripes as "the state religion" note that many restrictions in the US Flag Code are ignored by individuals and organisations.

The Code for example notes that "no part of the flag should ever be used as a costume or athletic uniform" and that it "should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper". It however regularly features on clothing, bedspreads, in publication, on packaging and even stars-&-stripes condoms.

As noted in discussion of defamation elsewhere on this site free speech is not a blank cheque.

The US Supreme Court, for example, in Virginia v Black ruled that states may outlaw acts of cross burning that are intended to intimidate, upholding most parts of a Virginia law that prohibited cross burning on public or private property. Justice Clarence Thomas commented that

Just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.

Use of flags as political communication is also contested.

One example is prosecution of Stephen Radich, owner of the Radich Gallery in New York, in 1966. Radich exhibited works by contemporary artist Marc Morrel, who had incorporated the US flag into works protesting the Vietnam War. In one work the flag was stuffed and hung like a corpse from a yellow noose. In another (a precursor of a similar item by Andres Serrano discussed here) the flag was fashioned into an erect phallus attached to a seven foot cross topped by a bishop's miter.

Radich was convicted in People of New York vs. Radich of "casting contempt on the American flag", with a $500 fine or 60 day prison sentence. (The artist was not charged.) The conviction was upheld by the New York State Court of Appeals and then went to the United States Supreme Court. That Court's tied vote allowed a further appeal, with the conviction being overturned in 1974. Radich had by then shuttered the gallery. As a cause célèbre the Judson Memorial Church in Greenwich Village organized a People's Flag Show in 1970 to protest the prosecution: three artists were arrested for flag desecration.

     studies

As highlighted at the beginning of this note, the US regime has resulted in substantial literature.

Salient works include the perceptive Flag Burning: Moral Panic & the Criminalization of Protest (New York: Aldine de Gruyter 2000) by Michael Welch, Blood Sacrifice and the Nation: Totem Rituals & the American Flag (Cambridge: Cambridge Uni Press 1999) by Carolyn Marvin & David Ingle and Burning the Flag: The Great 1989-1990 American Flag Desecration Controversy (Kent: Kent State Uni Press 1998) by Robert Goldstein.

Goldstein's Desecrating the American Flag: Key Documents of the Controversy from the Civil War to 1995 (Syracuse: Syracuse Uni Press 1996) and Saving 'Old Glory': The History of the American Flag Desecration Controversy (Boulder: Westview Press 1995) - along with The Flag and the Constitution - Vol. II, Flag Burning and the Law (New York: Garland 1993) edited by Michael Curtis - are also of value. Arnaldo Testi's Capture The Flag: The Stars and Stripes in American History (New York: New Yoork Uni Press 2010) - revisiting his Stelle e strisce: Storia di Una Bandiera (Turin: Bollati Boringhieri 2003) - is engaging. 'Waving the Red Flag and Reconstituting Old Glory' by Albert Boime in 4(2) Smithsonian Studies in American Art (1990) 2-25 considers use of the flag by artists such as Jasper Johns and Morrel. Anxieties and panics are discussed here.

Robert Bonner's Colors & Blood: Flag Passions of the Confederate South (Princeton: Princeton Uni Press 2002) and John Coski's The Confederate Battle Flag: America's Most Embattled Emblem (Cambridge: Belknap Press 2005) offer a perspective on what one critic dismissed as atavistic textile worship. They are complemented by Louis Masur's The Soiling of Old Glory: The Story of a Photograph that Shocked America (London: Bloomsbury 2008).




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