William M. Kunstler
1919 - 1995

This morning (5 September 1995), as I prepared to submit this collection of material to the moderator of the Flag-Burning Page, I read of the death yesterday of William M. Kunstler.

Although none of the obituaries I read (in the New York Times, Los Angeles Times, and Associated Press via the San Francisco Chronicle) mentioned it, Bill Kunstler argued both the the 1989 and 1990 flag-burning cases, successfully, before the U.S. Supreme Court. (Excerpts from both the transcripts and the audio recordings of his and the government's arguments in the 1989 case were published in "May It Please The Court", a book/tape collection of Supreme Court arguments in 23 landmark cases.)

As with many of his clients' causes, Bill Kunstler was more than a legal advocate for the rights of flag-burners. He spoke and wrote widely, to a variety of audiences, about the cases and the issues, and he came to be seen as a spokesperson for one side of the flag debate. For a time, he was more often and widely quoted on the issue than his clients who were actually burning flags.

At the same time, I feel bound to point out -- given the accusations of publicity-seeking and grandstanding often made by Bill Kunstler's opponents -- that he went out of his way to create opportunities for the voices and views of the defendants, and the amici (friends of the court) to be heard and included in the debate, even when they and their ideas were considerably less welcome than he as a lawyer would have been without them.

Joey Johnson and the defendants in the 1990 flagburning cases anticipated (correctly) that reporters covering the Supreme Court hearing would try to focus exclusively on legal technicalities, ignoring the underlying political issues which would inevitably remain at the root of the ongoing debate on the flag amendment.

Bill Kunstler himself suggested that each of the defendants prepare a statement to be delivered before he said anything or answered any questions at the news conference that would follow the hearing. They in turn, afraid that the reporters wouldn't stand still for all of them, asked me to introduce them with a collective statement on behalf of the Emergency Committee on the Supreme Court Flag-Burning Case.

As we came down the steps from the Supreme Court, Bill pushed me in front of him as reporters and photographers kept trying to shove me out of the picture. When I finally made it down to where the reporters had encamped, they kept shouting questions over me to Bill even as I began to read the statement.

I will never forget hearing Bill shouting back from behind me, "Shut up and listen to him" when the reporters ignored me. Only when they realized that he wasn't going to say anything until the defendants, and me as their collectively-chosen spokesperson, had had our say, did they quite down, reluctantly, for a moment.

(I'm told that protions of the shoving match, and the shouting, were noticable on CNN and C-SPAN, both of which, being forbiden to broadcast the Supreme Court proceeding themselves, were broadcasting the news conference live.)

This is the sort of "publicity hound" Bill Kunstler was.

The flag-burners sought out Bill Kunstler to represent them in significant part because they trusted him to allow them to speak for themselves and not to distort their politics to maximize the chances of legal "victory" (a common and often counter-productive strategy of apolitical lawyers in political cases.)

Unlike more mercenary lawyers, Bill Kunstler only took cases he belived in. Earlier this year, when last I saw him at a reading from his autobiography, he continued to speak of the flag cases as among the most important of his long and eventful career.

In an op-ed piece in the New York Times, 5 August 1989, "What Shocked Me Most About the Flag Amendment", Bill Kunstler wrote;

"Every time we've been stampeded into violating the rights of our citizens -- the infamous Alien and Sedition Acts in response to the excesses of the French Revolution, the suspension of the writ of habeas corpus during the Civil War and the relocation of Japanese-Americans after Pearl Harbor, to name but three well- known examples -- we have belatedly come to regret it."

Bill Kunstler isn't around around anymore to make to Congress, or to the public, the case for the right to burn flags which I feel privileged to have heard him make, so well, in 1989 and 1990 to the Supreme Court. His death is, to me, a remender that we can't ever rely on others to say for us what needs to be said. If it's important for us to say, we'll have to say it for ourselves. It's up to all of us to make ourselves heard on this issue.

The preceding information was submitted to The Flag Burning Page by Edward Hasbrouck, whom I would like to thank very much.
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Warren S. Apel