O'Er The Land of The Free

By WALTER ISAACSON

The American flag, that most inspiring of the nation's icons, has come to symbolize a great deal in its 212 years. It celebrates the country's history, its freedoms, and the battles fought to secure those freedoms. It embodies, often in an intensely emotional way, the love and loyalty most Americans feel for their country. It stands for the unity of one nation and for the individual rights of each citizen. And now, because of a landmark ruling by a deeply divided Supreme Court, the American flag represents a land where people have the right to burn the American flag.

Burn an American flag? The patriotic mind recoils. Reverence for the flag is ingrained in every schoolchild who has quailed at the thought of letting it touch the ground, in every citizen moved by pictures of it being raised at Iwo Jima or planted on the moon, in every veteran who has ever heard taps played at the end of a Memorial Day parade, in every gold-star mother who treasures a neatly folded emblem of her family's supreme sacrifice.

But it is precisely this veneration that makes burning the flag such a potent form of speech. And for the flag to truly stand for freedom of speech, the Supreme Court declared, it must stand for its most potent forms. "We do not consecrate the flag by punishing its desecration," Justice William Brennan wrote, "for in doing so we dilute the freedom that this cherished emblem represents." Indeed, the decision that Americans have the right to desecrate their flag could be seen as yet another persuasive reason not to do so.

The case involved Gregory ("Joey") Johnson, 32, a member of the Revolutionary Communist Youth Brigade, who torched an American flag outside the 1984 Republican Convention in Dallas. "America, the red, white and blue, we spit on you," chanted the crowd. Until now, despite the frequency with which the flag had been burned at antiwar rallies in the 1960s and '70s, the Supreme Court had avoided a direct ruling on whether the Government could prohibit such acts.

The opinion in favor of Johnson was written, not surprisingly, by one of the court's last liberal lions, Brennan. Equally unsurprising, the most consistent conservative on the bench, Chief Justice William Rehnquist, crafted the main dissent. What was noteworthy, however, was the unusual lineup behind them. John Paul Stevens, who by virtue of the court's rightward swing is now considered a liberal, joined with Sandra Day O'Connor and Byron White in dissent. On the other side, Ronald Reagan's two conservative appointees, Antonin Scalia and Anthony Kennedy, showed that when basic First Amendment rights were involved, they could come down in defense even of flag burning. Thurgood Marshall and Harry Blackmun rounded out the 5-to-4 majority.

The case boiled down to the most fundamental question that faces America's constitutional form of governance: To what extent can society enforce its standards without infringing too far on the rights of those in the minority? Rehnquist provided a classic formulation of the conservative position: "Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people." Brennan offered the liberal response: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

The court's decision was based on the premise that burning the flag was a form of symbolic speech. "We decline," Brennan wrote, "to create for the flag an exception to the joust of principles protected by the First Amendment." Such a decision does not denigrate the flag, he argued. "Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects."

Kennedy's concurrence obviously caused him anguish. "The flag holds a lonely place of honor in an age when absolutes are distrusted," he noted. Nevertheless, Kennedy concluded, "it is poignant but fundamental that the flag protects those who hold it in contempt."

Rehnquist rejected the premise that flag burning was a form of symbolic speech, calling it the "equivalent of an inarticulate grunt or roar." In his separate dissent, Stevens made the case that the flag as a symbol is "worthy of protection from unnecessary desecration." He cited a variety of cases where the Government might legitimately restrict free expression in order to protect other interests: the writing of graffiti on the Washington Monument, painting or projecting movie messages on the Lincoln Memorial, extinguishing the eternal flame at John Kennedy's grave.

Acts of vandalism such as these clearly are not protected by the court's ruling. Likewise, not all flag burning is protected. A person who attacks Old Glory flying over a public building could still be charged with vandalism, trespassing or other crimes. If the burning of a flag would "tend to incite an immediate breach of the peace," that too could still be considered a crime. As Oliver Wendell Holmes might have said, freedom of speech does not give a person the right to set a flag on fire in a crowded theater.

The ruling does, however, invalidate laws in 48 states (the exceptions are Alaska and Wyoming) and at the federal level that prohibit the desecration of the flag. It also presumably would have protected the provocative display at the School of the Art Institute of Chicago at which, earlier this year, an American flag was placed on the floor, where viewers might step on it.

After the court announced its decision last week, Joey Johnson proudly posed with charred flags. "I think it was great to see a symbol of international plunder and murder go up in flames," he said. His lawyer, David Cole, was slightly less inflammatory: "If free expression is to exist in this country, people must be as free to burn the flag as they are to wave it." Civil liberties advocates approved, though some were worried that the case had been decided by so narrow a margin. "James Madison, who wrote the First Amendment, would have his heart warmed by the decision," said David O'Brien, a professor of political science at the University of Virginia, "but he would have been appalled that it was a 5-to-4 vote."

Veterans around the country, on the other hand, were outraged that they had risked their lives to protect a flag so that others might have the right to burn it. Said Don Bracken, the adjutant quartermaster of the Veterans of Foreign Wars chapter in Seattle: "The flag is a symbol of the U.S., and when you destroy that flag, you destroy the principles of our country." Conservative activists such as Patrick McGuigan of the Free Congress Foundation saw the ruling as yet another attack on traditional values. "The Supreme Court has told us schoolchildren may wear printed obscenities on their shirts but may not pray at the start of the school day," he said. "Now it $ tells us the majority may not protect our most precious symbol of national unity, Old Glory."

Official Washington too was caught up in the paroxysms of patriotism. The Senate voted 97-to-3 for a resolution by majority leader George Mitchell and minority leader Bob Dole that expressed "profound disappointment" in the decision. "I will join the efforts of other members of Congress in rectifying this action, including supporting a constitutional amendment, if necessary," Georgia Democrat Sam Nunn declared.

The outpouring of political rhetoric reflected the success George Bush had last fall visiting a flag factory in New Jersey and attacking Michael Dukakis for once vetoing a bill that would have required teachers to lead their students in the Pledge of Allegiance each day. "Flag burning is wrong -- dead wrong," Bush pronounced after the court's ruling.

Most Americans would agree. But as the court pointed out, jailing people for burning the flag -- or forcing them to recite the Pledge of Allegiance -- is not what patriotism in America is really all about. That is the type of coerced patriotism that can be found elsewhere, in the darker corners of the globe. True patriotism comes from the heart and not from the barrel of a gun.

In his emotional dissent, Justice Rehnquist included the text of The Star- Spangled Banner. Its words tell the story of the flag's survival amid British bombs bursting over Fort McHenry -- an image of a banner resilient in the face of flame. Similarly, as long as the freedom for which it stands is resolutely respected, the flag is certain to survive the flames of all the Joey Johnsons who would wish otherwise. "And it is this resilience," proclaimed Justice Brennan, "that we re-reassert today."

With reporting by Steven Holmes/Washington