[Following is the testimony submitted on behalf of the Emergency Committee on the Supreme Court Flag-Burning Case to the Congressional hearings held 13-20 July 1989, at which the possibility of amending the U.S. Constitution to outlaw flag desecration was first considered.
The Subcommittee which conducted the hearings refused to allow Gregory Johnson -- at whose activities the laws and amendments under consideration were directed -- or the Emergency Committee -- whose position had just been upheld by the Supreme Court -- to present testimony in person, although the testimony that follows was included in the published record of the hearings.
The published record, "Statutory and Constitutional Responses to the Supreme Court Decision in Texas v. Johnson", also included the appendices to the Emergency Committee's testimony. I am unable to include here for want of a scanner, as they were prepared on a variety of other word processors and typewriters.
The Emergency Committee -- later renamed the Emergency Committee to Stop the Flag Amendment and Laws -- suspended its activities in 1990 following the second round of Supreme Court flagburning cases, and the failure of the proposed flag amendment to the U.S. Constitution to obtain, at that time, the votes of the required two-thirds of both the Senate and the House of Representatives.
There is thus no longer, unfortunately, any organization committed primarily to activism, organizing, or lobbying on this issue, although most of the individuals and groups who endorsed the Emergency Committee remain opposed to the flag amendment.
Don Edwards, it should also be noted, is no longer the chairman of the Subcommittee which held these hearings, and the House of Representatives has already approved the Flag Protection Amendment. See elsewhere in this Web site for links to current Congressional committee assignments and addresses.
I remain committed to the views I expressed as an organizer, spokesperson, and lobbyist for the Emergency Committee, and available to discuss these issues or provide further information to interested readers. You can reach me by e-mail at "email@example.com, or by phone or fax at 415-824-0214.]
on the Supreme Court Flagburning Case
26 July 1989
Don Edwards, Chairman
Subcommittee on Civil and Constitutional Rights
Committee on the Judiciary
House of Representatives
Washington, DC 20515-6220
I. Interest of the Emergency Committee
The interest of the Emergency Committee on the Supreme Court Flag-burning Case in these hearings is an outgrowth of our role in Texas v. Johnson, the Supreme Court case which prompted the measures now under consideration before the Subcommittee.
In the Supreme Court, the Emergency Committee coordinated the filing of friend-of-the-court briefs on behalf of 16 prominent artists and 22 organizations (see attached list), briefs on behalf of the respondent (Gregory "Joey" Johnson), and other educational and outreach work about the case and the issue. The Emergency Committee is also working with Dread Scott of the School of the Art Institute of Chicago, the exhibition of whose work led to others of the current bills against flag "desecration".
We believe that passage of any of these bills would affect the basic abilities to dissent for many people across a broad political spectrum. Further, those whose activities might be considered to be "desecration" under the proposals before you have perspectives essential to any debate over these measures, especially as to the likely effects of these measures on important artistic, political, and social endeavors. The views of these artists and others are especially important in that their very existence has been largely ignored in the current debate on flag consecration.
(The importance of our own written testimony is heightened by the fact that -- despite requests by many -- neither Mr. Johnson, Mr. Scott, any of the individual and organizational signatories to friend-of-the-court briefs in Mr. Johnson's behalf in the Supreme Court, any of their attorneys, nor any representatives of any of those who would be directly affected by the proposals before you have been permitted to testify in person at your current hearings.)
We hope our testimony will help explain why both a cross-section of the most renowned American artists and major national organizations with memberships in the millions have joined in opposition to a flag consecration ruling by the Supreme Court and continue to oppose legal consecration of the U.S flag and the criminalzation of flag "desecration".
II. The decision of the Supreme Court in Texas v. Johnson
As one of the major participants in Texas v. Johnson, we believe that the Supreme Court's decision has been severely misread by its critics. Most of those seeking to reverse the decision, whether by statutory or Constitutional means, base their proposals on the mistaken belief that, in this case, (1) the Supreme Court overturned Mr. Johnson's conviction, (2) the Court extended the protection of the First Amendment to flag burning, and (3) the issue before the Court was whether flag burning was or was not symbolic speech. All these beliefs are false.
The essence of the Supreme Court's decision was to upold the decision of the Texas Court of Criminal Appeals, which had already overturned Mr. Johnson's conviction. Had the Supreme Court not heard Texas' case, Mr. Johnson would have been free (after jailing, trial, four years in court, thousands of dollars of expenses, and thousands of hours of his, his lawyers' and his supporters' time) more than a year ago. By taking the case the Supreme Court did not "let off" a man who would otherwise have been imprisoned; rather, they subjected an innocent man to an additional year of costly legal punishment.
Texas' court -- no liberal body -- overturned Mr. Johnson's conviction neither on its own initiative nor because it wanted to; it was compelled by a long line of Supreme Court precedent that has protected use of the flag. The Supreme Court has heard several flag cases and has never upheld a conviction for any form of flag "desecration". (The Court had never ruled on whether all such laws are on their face unconstitutional, but it again avoided that issue in deciding Johnson.) The novelty of Johnson was not that the Court reaffirmed its precedents but that at least four Justices thought there was enough chance of overturning them for it to be worth the Court's while to hear the case.
The measures before the Subcommittee and the Congress must be seen, therefore, not as measures to overturn a radical decision -- one which threatens a tradition of protection of the flag -- but as themselves radical threats to any protection of free expression. The burden is on those who would newly consecrate the flag to offer more than the Supreme Court's reaffirmation of settled precedent as grounds for their belief that such new measures are suddenly needed. There are, we believe, no such new grounds.
There are, on the other hand, the same reasons for you as for the Supreme Court not to consecrate the U.S. flag. Foremost of these are the vast variety of ideas -- almost any of which could be considered by its detractors to be "desecration" -- expressed with flags.
After Mr. Johnson's trial, for example, no one familiar with the record could doubt that, as the Supreme Court has articulated the standard, "an intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it."
There was no argument on this issue before the Court. As Justice Brennan pointed out for the majority, "The State of Texas conceded for purposes of oral argument in this case that Johnson's conduct was expressive conduct.... Johnson burned an American flag as part -- indeed, as the culmination -- of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent."
In reaching its conclusion, the Court had before it friend-of-the-court briefs on behalf of a broad range of people and organizations whose work would be affected by a ruling against flag "desecration". They included 16 of the most renowned contemporary American artists, a Pulitzer Prize winning editorial cartoonist, and 22 political organizations involved in virtually every major national social and political debate.
As these artists pointed out, "Artists do not usually communicate through words, but reach their audiences through the use of symbols and recognized images. Elimination of any particular 'tool of the trade'... necessarily limits the visual vocabulary and stifles the creative process." Their briefs were acompanied by samples of the use of the flag in "the fine arts, graphic arts, the art of the editorial cartoonist, and the decorative art of early America."
These organizations, joined by a common belief "that symbolic speech is an important and proper medium for expressing messages of political and social significance", told the Court that "their efforts to effect progressive social changes through the exercise of free speech would be seriously impaired" were symbolic use of the flag to be restricted.
These perspectives were, we believe, decisive in demonstrating to the Supreme Court that flag "desecration" cannot be prohibited without repudiating the First Amendment (not to mention the Declaration of Independence, which seems to say that human rights are "unalienable" rather than subject to revocation by Constitutional amendment). We believe they should be equally compelling arguments against a flag "protection" amendment or other flag consecration law.
III. Legal Consecration of the U.S. Flag
The issue which divided the Court in Texas v. Johnson was whether promotion of nationhood and national unity -- the State's stated reason for suppressing flag burning -- was "content-based", i.e., was related to the message expressed by flag burning. The Court's decision makes clear that "desecration" -- removal of sacredness -- is an inherently content-based concept, and that any flag consecration amendment or law contravenes the First Amendment.
In the Court's opinion, "The State, apparently, is concerned that such conduct will lead people to believe either that the flag does not stand for nationhood and national unity, but instead reflects other, less positive concepts, or that the concepts reflected in the flag do not in fact exist, that is, we do not enjoy unity as a nation." (These concepts, we note, are not merely debatable but vigorously debated by Americans and others around the world.)
"These concerns blossom only when a person's treatment of the flag communicates some message, and thus are related to the suppression of free expression.... We are confronted with a case of prosecution for the expression of an idea through activity.... Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for the expression of dissatisfaction with the policies of this country."
It is just such dissatisfaction that has motivated the wave of flag burnings since the Supreme Court's decision. Flags have been burned, for example, at a gay and lesbian commemoration of the 20th anniversary of Stonewall, at Puerto Rican nationalist rallies, by victims of American racism, and at demonstrations for abortion rights. Flag burnings have been reported in Boston, Austin, Albany, Cleveland, Minneapolis, Portland, New York, Iowa City, Berkeley, Little Rock, Rochester, San Francisco, Chicago, and Los Angeles.
Those who believe that no one with anything meaningful to say would choose to use the flag to say it reduce their own flag waving to Chief Justice Rehnquist's dissenting caricature of flag burning: "an inarticulate grunt or roar ... engaged in not to express any particular idea."
What particular ideas might be expressed by burning a flag? It might be opposition to idolatry in general, to the concept of the sacredness of physical objects. It might be opposition to particular actions carried out under that flag, whether by the government or by its agents (such as its soldiers). It might be opposition to governments in general, or to the particular government represented by the particular flag. It might be opposition to the government as being the legitimate representative of the people, or as acting in their interests or those of others. One might express opposition to particular actions of the nation. One might express opposition to the actions of the nation in general, or to all people who support the government and the flag. Or, most broadly, one might burn the American flag to say that America is a blight on the world. Some of us say each of these things. All of us say them with flags.
"Desecration", of course, can cover a multitude of sins. Neither the Texas statute, the existing Federal statute, nor the proposals before the Subcommittee are confined to flag burning alone. Their proponents have generally taken for granted that, as one said, "I know desecration when I see it", and have assumed that all "desecration" should be forbidden along with flag burning. But desecration, unlike burning, is an essentially religious concept whose meaning is different to each person of the faith.
Many of the friends of the court in Texas v. Johnson would rarely, if ever, burn a flag. But they saw -- as you should see -- broader implications in the broad language of the Texas statute:
"Amici have a special interest in ... this case. Each is dedicated to achieving progressive social ends through organized political, legal, and/or educational activity. In pursuing such ends, each relies upon the constitutional guarantee of free expression to ensure that its voice be heard....
"Many of the amici regularly engage in political expression that is symbolic in form, or in which conduct and speech are intertwined.... The American flag, as the leading symbol of our government, is a particularly potent medium for communicating opposition to government policies."
"Many of the amici [artists] have used flags in their work. Two of them ... were convicted of violating New York's flag desecration statute when they organized a[n] exhibition of works using the American flag. The works of several other amici were shown in that exhibition.... The statute would similarly encompass much of the work of any art exhibition devoted to the use of the flag such as the 1970 'People's Flag Show' at the Judson Memorial Church in Manhattan [or] 'Stars and Stripes', organized by the San Francisco chapter of the American Institute of Graphic Arts to coincide with the 100th anniversary of the Statue of Liberty."
In part because of the chilling effect of flag consecration laws (even where, as has long been the case, lawyers know them to be unconstitutional) it is those to whom the flag symbolizes positive values who are most apt to use and abuse it. The very editorial cartoons in which the Supreme Court was criticized for its decision would not have been permitted were the decision reversed, containing as they did representations of burning, torn and trampled flags.
Any effort to overturn Texas v. Johnson (and its predecessors) by statutory means would fail the legal test established by the Supreme Court's ruling, since it is impossible to prohibit "all flag burning" without equal application to acts both "desecratory" and "reverent". And if some argue that a statute would be a quicker and easier way to accomplish "all the objectives" of an amendment, the obvious question must be asked: What are these objectives? The answer is obvious, and cannot be obscured by legal language: "protection" of the flag means the suppression of dissent against the government. The prohibition of disrespect is tantamount to the compulsion of respect. This is a dangerous logic.
You have been told that it is possible to draft a facially valid flag protection statute. While that is true, it is also irrelevant: even the Texas statute was found valid on its face. Any statute which succeeds in consecrating the flag will, as was Texas' law, be found unconstitutional as it is applied.
The unconstitutionality of the application of such a statute inheres in the purpose and meaning of "desecration". A statute forbidding "all desecration" would, it is clear from Johnson, be unconstitutional as applied to any intentionally meaningful conduct. "Desecration" depends on content, a fact made clear at oral argument when the Justices pressed Texas' attorney, unsuccessfully, for an example of desecration intended to express respect for the flag.
A statute forbidding "all flag burning" but enforced only against desecratory burning would be equally invalid as applied. Only if reverent flag burning (such as for ritual destruction of used flags) were actually prosecuted with equal vigor could prosecution for profane flag burning withstand constitutional scrutiny. (The task of establishing discriminatory prosecution would be considerably facilitated by a legislative history showing your intention in passing such a measure that it be applied to flag desecration and not to flag consecration.) Passage of such a facially valid measure for such a discriminatory purpose would serve only to shift the burden of attempting to subvert the Constitution from yourselves to the Department of Justice.
We are many. We are united. And we are raising our voices -- loud, angry, throughout the land -- to say that it is our thoughts, our beliefs, our visions, our art, our politics, and ultimately our cries of outrage that you are trying to gag with flags.
We will not go away; we will not silence or censor ourselves. Any flag consecration statute will be defied. Any prosecution will be challenged. Any conviction will be appealed.
If you are to repeal the Bill of Rights you will have to do so openly, you will have to acknowledge that that is what you are doing, and you will have to defend your action as such before us, before the American people, and before the world.
Amending the Constitution has even more serious problems as a means of preventing flag "desecration", not least because the point of such a new amendment would be to repeal the First Amendment.
A flag consecration law would be a law respecting the establishment of religion and prohibiting the free exercise thereof; a law abridging the freedom of speech and of the press and the right of the people peacably to assemble and to petition the Government for a redress of grievances.
We can imagine no more thorough repudiation of every provision of the First Amendment. Passage of such an amendment would signify your unconcern with the freedoms for which the First Amendment is supposed to stand.
What will be next? Who will be next?
"Today you want to prohibit us from burning the flag. Tomorrow we will not be able to speak against the flag. Then we will not be able to speak against the government. Once you're able to apply the logic that whatever 'harms nationhood and national unity' should be verboten, does anybody think you'll just stop at flag-burning?" wrote Mr. Johnson in testimony he sought, but was denied, permission to give before this Subcommittee.
The chilling -- some would say fascistic -- implications of flag consecration, repeal of the First Amendment, and the precedents they would set are major reasons for the broad opposition to a Flag Consecration Amendment. A national campaign against any such Amendment is already being organized by the Emergency Committee on the Supreme Court Flag-burning Case and other individuals and groups. Support for this campaign already extends well beyond those who participated in the Supreme Court case (see attached statements).
There are reasons we relate to the flag as they do, just as there are reasons we speak as we do and think as we do. Our actions are a form of that speech, a manifestation of those thoughts.
In the end, the issue is not the flag but what it stands for; not flag burning but what it says. You are the Government; you have power; you can try to suppress and repress people's actions. But you can rarely suppress our words, and you can never repress our thoughts.
Edward John Hasbrouck
for the Emergency Committee on the
Supreme Court Flag-burning Case
attachments: Appendices A - M
Appendix A: Call for a campaign against the flag amendment by the Emergency Committee on the Supreme Court Flag-burning Case
Appendix B: Signers of amicus curiae briefs filed in support of Respondent Johnson in Texas v. Johnson, 25 January 1989
Appendix C: Statement of Gregory Lee "Joey" Johnson, member of the Revolutionany Communist Youth Brigade and Defendant and Respondent in Texas v. Johnson, 25 July 1989
Appendix D: "Statement Opposing Flag Desecration Amendment" by the Center for Constitutional Rights and others, July 1989
Appendix E: Statement of Carl Dix, National Spokesperson, Revolutionary Communist Party, U.S.A., at a press conference on Texas v. Johnson, 28 June 1989, New York City
Appendix F: Statement of the Friends Committee on National Legislation at a "People's Hearing" on the flag amendment, 29 June 1989, Washington, DC
Appendix G: Statement of Leon Golub, artist and signatory to the artists' brief in support of Respondent Johnson, at a press conference on Texas v. Johnson, 28 June 1989, New York City
Appendix H: Statement of Jon Hendricks, artist, Judson 3 (People's Flag Show, 1970), December 1988
Appendix I: Statement of Paul Magno, member of the Catholic Worker, at a "People's Hearing" on the flag amendment, 20 July 1989, Washington, DC
Appendix J: Statement of the National Conference of Black Lawyers at a "People's Hearing" on the flag amendment, 19 July 1989, Washington, DC
Appendix K: Statement of the National Organization of Women, New York Chapter, at a press conference on Texas v. Johnson, 21 June 1989, New York City
Appendix L: Statement of Dread Scott at a press conference on Texas v. Johnson, 28 June 1989, New York City
Appendix M: "Resolution Affirming the Value of the Flag as Symbolic Speech and Opposing Efforts to Restrict Freedom of Expression" by the 17th General Synod of the United Church of Christ, 29 June 1989