Chapter 4 Stars and Stripes on Fire

When the news that "the United States can burn the flag" first spread across the ocean, it really took everyone by surprise. "Burning the national flag" is a very unusual move. The story still has to start from the beginning.The American flag was not born with the Constitution.Two hundred years ago, the founders of the nation struggled to design a government that was both authoritative and not degenerate into a dictatorial machine, so they really could not take care of celebrations such as the national flag and the national anthem.This is another country with a loose federal system, traditional and pragmatic, and does not take symbols such as the national flag too seriously.Therefore, the text of the U.S. Constitution has never changed, but the U.S. flag has been changing. Few people can say when it will be regarded as an official flag.But everyone knows that when they rebelled against the King of England, there was only a coiled rattlesnake on the banner of the rebel army, with its tongue sticking out high up, and a line of words underneath: "Don't step on me!" To unify the national flag, let alone someone wants to burn the national flag.

The national flag, as a symbol, has suddenly gained weight in the hearts of Americans since World War II.Through this war, Americans scattered in various "states" finally realized that they are a closely related whole.Since then, their identification with the United States of America is reflected in their attitude towards the national flag.The patriotic enthusiasm suddenly rose, and the national flags flying everywhere were spontaneously hung by the people.At this time, it is also difficult to imagine anyone wanting to burn the flag. The opportunity to "burn the national flag" appeared in the 1960s.The anti-Vietnam War and the southern black civil rights movement triggered some radical behaviors. Social unrest caused great confusion for Americans. At the same time as traditional values ​​collapsed, some people finally expressed their anger by burning the national flag.

In June 1966, James, a black man, was shot in Mississippi.He was a celebrity, the first black student to attend Mississippi State University when segregation in the South was broken.That sparked an overnight riot in the town where the school is located that left two dead.While the incident shocked the world, James' name spread all over the place.Since then, he has devoted himself to the civil rights movement and traveled deep into the deep South.At the juncture of reform in the South, in certain backwater villages, some KKK white radicals often went to extremes and resorted to violence.Therefore, James' activities at that time were dangerous.Anyway, the shooting happened.

On June 6, a black man named Streeter in New York City was furious when he heard the news of James' injury.Although he knows that the United States is a country with decentralized powers, the power of public security belongs to the local government, and the federal government has no right to intervene, and the federal government has no right to send people like bodyguards to follow and protect civil rights workers who go deep into the South.But Streeter, in a fit of rage, turned his anger on the federal government.As an American citizen, of course he has the right to express his anger in public, but the way he expressed it was a bit unexpected.

He is a decorated "World War II" veteran.These veterans are still the most patriotic group of people in the United States to this day.There is also a neatly stacked national flag in Streeter's drawer, and he hangs it in front of his house every festival.But today he took out the national flag and walked outside the door, but he shook it off and lit it, then threw it on the ground, and excitedly told the crowd of onlookers his anger.He was arrested by a patrolman. Under New York's criminal law at the time, desecrating the flag was illegal.So Streeter was found guilty by the local court, and the case went all the way to the Federal Supreme Court on appeal.In the Supreme Court, the defendant's lawyers argued that his actions were a purely political protest and therefore should be protected by the Free Speech Clause of the First Amendment to the Constitution.

The Federal Supreme Court mainly examines whether New York State's anti-flag desecration law is unconstitutional.The justices argued that the law, which prohibits defacement, slander and trampling on the flag "by words and gestures," was too vague.According to this, people could be criminalized simply for "speech" that offends the flag, violating free speech.Therefore, in April 1969, the Supreme Court overturned the original judgment by 5 to 4, and the case was remanded for retrial. This is the first "flag burning" case in the United States to reach the Supreme Court.

Obviously, the justices were also thinking about this unprecedented case at that time.Therefore, in the judgment, there was no clear statement as to whether burning the national flag is a "symbolic speech" protected by the Constitution.But everyone knows that, with this beginning, the question will return, sooner or later, to the Supreme Court. In 1967, the flag was burned at a large anti-Vietnam War rally in Central Park, New York.News photos of the scene published by various newspapers made it the most sensational national flag burning in history.Under popular pressure, Congress convened a debate and passed the first federal anti-flag desecration law in 1968.In fact, all states had similar laws at that time.The congressional move was just an expression of public opinion, conveying the strong reaction of the majority of the people at that time: they could not emotionally accept the "burning of the national flag".

In 1970, the anti-Vietnam War movement on American college campuses was like wildfire.Students at the University of Kent clashed with militiamen maintaining order during a demonstration. During the chaos, militiamen opened fire in tension, killing four students.The news shocked the whole country.In Seattle, a college student named Spencer was upset and decided to express himself.He used black tape to affix a symbol of peace, a Native American ornament, to an American flag and held it upside down through his window. Prosecutors charged Spence, citing a state law that "prohibits improper use."This law prohibits the painting and installation of any words, designs, symbols, etc. on the national flag or state flag.Spence stated in court that his actions were in protest of the US bombing of Cambodia and the killing of University of Kent students.He said: "There is too much killing now, this cannot represent the United States. I think the flag represents the United States, and I want people to know that the United States should represent peace." Judgment, the facts of the case, the conviction.He was therefore found guilty, sentenced to ten days' suspended imprisonment, and fined seventy-five dollars.

The lawsuit seems to have come to an end here. There is a legal basis, and the sentence is reasonable. The sentence was ten days but not jail time. Seventy-five dollars is not a big sum. But now, this young man wants to argue for his rights.He decided to appeal.In this way, the energy and financial resources paid are far more than seventy-five dollars. An appeals court overturned the decision, arguing that the state law could not stand under a constitutional amendment protecting free speech.The prosecution appealed to the state Supreme Court, which overturned the appeals court's decision and upheld the original verdict.Spence appealed again.After several rounds, it was already June 1974 when the Federal Supreme Court made its ruling.

The Federal Supreme Court first pointed out some facts: first, the flag was owned by Spencer, and it was private property rather than public property; second, he displayed it in the window of his residence and did not enter public places, so it did not involve any regulation of behavior in public places third, he did not “break the peace”; fourth, even the state Supreme Court admitted that he was engaging in some form of communication.What he did was "I want people to know that America should represent peace."It's just that he used a special form of expression.After examining the details, the Supreme Court ruled seven to two that Spence's conduct was a protected form of "expression," overturning the state Supreme Court's ruling.

Most of these cases are minor, far less life-threatening than the murders often seen on TV.The defendant lost without any serious consequences.But to say that the small ones are not small, they have all gone through a long court road and boarded the highest hall of American justice.Because these cases are all about principles, their rulings will become the basis for future judgments by courts of all sizes in the United States and become the rules of social games.The serious thinking of the justices on the "little chicken feather case" is the process of continuous construction and self-renewal of the legal system.It is also the process by which America's founding ideals have become operable in the troubled secular reality. These cases are notable precisely because Americans generally respect the flag.There is a "First Flag" in the Museum of American History, which was made by a mother and daughter in Baltimore when the country was first founded, and it is called "Old Glory".It has aged over two hundred years.The federal government decided to use modern technology to save the first flag of the United States. It is estimated that it will take three years and cost 18 million US dollars. "Old Glory" is regarded by Americans today as a national treasure on the same level as the Declaration of Independence, the Constitution and the Bill of Rights. The American public does generally love the flag.Unlike many countries, the Star-Spangled Banner appears civilian, with some humor, and is not always stern.The American flag can be seen everywhere, not only on the official flagpoles of school institutions, but also by ordinary people in their own yards or under the eaves.I used to think it was a little too garish, and that garishness is a real addition to the festival.Several times I saw several girls walking in a row, the clothes and pants on their bodies coincided with the pattern of the national flag, ostentatiously passing through the streets, leading passers-by to applaud.The top hat of the clown at the festival is also often the national flag.I finally found that Americans are naturally humorous, cheerful and friendly, which matches their fancy flags very well. In the United States, there are many and all kinds of people who are dissatisfied with the government.But people who really want to vent their anger on the national flag are extremely rare.So, after the turmoil of the 1960s, there were not many "flag cases". In 1984, the Republican Party held its convention in Dallas, Texas. Such occasions are usually supported and protested in the United States.This time, a group of people who opposed Reagan's policies marched outside the venue. As they swam, the crowd became agitated and their behavior began to get out of control.Someone painted walls with spray paint, someone smashed flower pots on the side of the road, and someone even tore down a national flag.Among them was a young man named Johnson who was a member of an organization called the Revolutionary Communist Youth Brigade.He took the flag that was handed up, poured gasoline on it, and set it on fire as he walked past the city council. They also sang around the fire: "America, red, white and blue flags, we spit on you." The sight shocked many onlookers.Someone even went back to the scene to collect the ashes of the burnt debris and bury them.Johnson was charged with violating state law by destroying a revered property.At the time of the case, in addition to the federal anti-flag desecration law, 48 of the 50 states in the United States had similar laws. "Burning the national flag" was a violation of the clear written criminal law at the time. In court, Johnson claimed his actions were political, not criminal.He said that he was opposed to Reagan's presidency of the United States and was angry at the Republican Party's nomination of Reagan for re-election.He thought it was a symbolic language expression, and he couldn't find a more powerful way to express it. The court sentenced him to one year in prison and a fine of 2,000 yuan, and the Court of Appeal upheld the original sentence. He appealed again, and the state Supreme Court overturned the original verdict.In his ruling, the judge said that based on the organized demonstration, slogans, speeches and materials distributed, anyone who saw this action could understand what he wanted to convey.Therefore, Johnson's actions are within the scope of "speech" protected by the Constitution. This is actually a judgment between the "flag desecration law" and the Constitution.The court cited the Supreme Court's past rulings, "Government recognizes that the individual's right to be different is at the heart of the First Amendment liberty. A unified symbol, attaching to this symbol a set of meanings it claims", and then forcing the people to obey the status of this symbol.The state executive branch as the plaintiff had to appeal to the Federal Supreme Court. We have seen that cases, once they enter the judicial process, are often divisive.Because the legislation of legislative branches in different historical periods may conflict with each other, and even conflict with the Constitution.The judiciary will encounter these conflicts when judging cases.For example, whether some "symbolic speech" is covered by the First Amendment to the Constitution has different understandings in different historical stages.The thinking of the judges also reflects the thinking of the United States at different historical stages.In the 1982 case "United States v. Kim", the Fourth Court of Appeals held that burning the flag was not within the scope of speech protected by the Constitution. When such speech is expressed, it should be under the protection of the First Amendment to the Constitution. The Johnson case entered the Supreme Court in 1989.Just before that, a student in Chicago held an art exhibition.Americans have a consensus that artistic creation is the freest part of freedom of speech.Artists can do all sorts of clever and bad creations without human intervention.In addition to photographs of flags being burned and flag-covered coffins, the exhibit poses a question to visitors: What is an appropriate way to display the American flag?Visitors can leave a message.At this time, a "bad" idea came up: the organizer laid an American flag on the floor between the visitors and the guestbook.Want to leave a message?You have to walk across the flag and stand on the flag. Originally the most neglected art exhibition, it caused an uproar in the ruling and opposition parties.It can be seen how much most Americans love the national flag.Two state legislatures have passed bills condemning the exhibition.Both the city of Chicago and the Illinois state legislature immediately enacted legislation banning the placement of the flag on the ground.Five thousand people rallied to protest the exhibition.Even President Bush came out to condemn the exhibition. On March 16, 1989, the U.S. Senate unanimously passed an amendment to the 1968 Federal Anti-Flag Desecration Act with a 97-0 vote, stipulating that anyone who spreads the flag on the ground in the future will be guilty of a crime. At this time when the public was furious, the "Johnson flag burning case" reached the Supreme Court of the United States.This is one of the reasons why the case is so famous in the United States. On the fifth day after Congress passed the amendment to the anti-flag desecration law, the federal Supreme Court summoned representatives from both sides of the Johnson case to hear arguments. Lawyer Deru, who represents the executive branch of the state government, pointed out at the beginning that the interests of the people of Texas are higher than the freedom of individuals to express their opinions in any way. There are two reasons: First, burning the flag is an illegal "break of the peace" and "combat rhetoric".According to previous Supreme Court cases, "peace-breaking" speech and "combat speech" are not protected by the Constitution.The most classic example is that yelling "on fire" for no reason at the entrance of a movie theater full of venues is a speech that "breaks the peace". And "combat speech" refers to provocations that cause the listener to fight back, such as pointing at a person and swearing.Second, state governments must "protect the national flag as a symbol of national and national unity".Deru lawyers accordingly pointed out that the state's anti-flag desecration law is constitutional.Therefore, it is illegal for Johnson to burn the flag. Lawyer Kensler of the American Civil Liberties Union, who represented the defendant, pointed out that the state's anti-flag desecration law is too vague and extended, and its implementation will inevitably violate civil rights, which is unconstitutional.He used dictionaries as his basis to explain the meaning of "blasphemy."The object of "blasphemy," he said, was something sacred.Due to the civilian characteristics of the American flag, it often appears in festive, humorous and even funny occasions.For example, the President's wife has a scarf with a national flag pattern.The girls had bikinis with flag prints.Stores often sell hot dogs with a little flag on them, and you throw it in the trash before you take your first bite.You could call this "blasphemy". He defended that Johnson's actions were only a political anti-government statement, and that such symbolic speech should be protected by the Constitution.He cited Johnson's testimony: "Because I have the constitutional right to freedom of speech, I can do anything I want to the flag, and the government has no power to stop me." Lawyer Kensler emphasized: The government has no right to infringe on citizens' speech Liberty, "that's the heart of the First Amendment. The First Amendment is more tested when we see something we hate than when we see something we like. It wasn't designed for our liking, What we like doesn't even need a Constitutional Amendment." On June 21, 1989, the Supreme Court voted five to four after adjourning for a "long examination" and ruled that Johnson's actions constituted "symbolic speech," which is freedom of speech protected by the Constitution. The Supreme Court explained that to determine whether an act has a sufficient "communicative element," the court must test whether the act "was motivated to convey a particular Content".The justice pointed out that even the Texas government recognized that Johnson's act of burning the flag had sufficient expressive content.Therefore, it can be classified as "symbolic language", which can make a claim for the protection of the First Amendment to the Constitution. We have seen that the Supreme Court only determined whether Johnson's behavior was an "expression", regardless of the content of his expression.This is because the most critical point of the First Amendment to the US Constitution to protect freedom of speech is "content neutrality", that is, the law does not consider the content of speech at all when protecting freedom of speech. The question then is whether the Texas law invoked in the case allegedly suppresses "freedom of expression."In response to the two defenses put forward by the state, the justice pointed out that the first "prevention of breach of the peace" has no factual basis.Because Johnson's act of burning the flag caused shock and anger, but in fact no breach of peace occurred.There is also no fact to prove that this behavior constitutes "combat rhetoric" that provokes counterattacks and undermines peace."Under our system of government, the function of free speech is to provoke discussion," the justices said. "It may serve its highest purpose when it causes disquiet, dissatisfaction, and even outrage." For another reason: "Because of the importance of national and national unity, its symbols cannot be desecrated." The Supreme Court ruled that this reason is suspected of suppressing freedom of expression.The justice said that precisely because the flag symbolizes the unity of the nation and the country, rather than some other small thing, it is difficult to convince people that Johnson's behavior is enough to endanger this symbol.The justice pointed out that the national flag does have a lofty status and symbol, but it cannot be used to suppress anyone from expressing their views.Justice Brennan wrote this passage that has since been often quoted: If there is a fundamental principle under the First Amendment, it is that the government cannot prohibit the expression of an idea simply because it is considered offensive by society and unacceptable.We recognize no exceptions to this principle, even our flag is involved. In this way, the Federal Supreme Court not only upheld the judgment of the State Supreme Court, but also ruled that the then "Anti-Flag Desecration Law" prohibiting and punishing citizens to express political views by burning the flag is unconstitutional. Five to four is really a very hanging vote result, which very vividly expresses the thinking, struggle and confusion of Americans on this issue.As soon as the result was announced, President Bush immediately stated that "burning the national flag is wrong, a big mistake."At the same time, the newspaper immediately published a news photo of the winner. In the photo, Johnson was actually holding a blackened American flag triumphantly.I believe this photo disgusts most Americans, but they temporarily admit it.Since they are not satisfied with the result, what are they agreeing with?What they agree with is the system and the constitution, which is their common contract. If the people feel absolutely unacceptable to the judgment of the Supreme Court, the legislation to protect the national flag can be directly included in the constitution in the form of a constitutional amendment, bringing it back to life.However, the generation of constitutional amendments is not easy. It must be passed by two-thirds of the Senate and the House of Representatives, and then by three-quarters of the state legislature.Alternatively, two-thirds of the state legislatures must propose to convene a constitutional amendment convention, and at least three-quarters of the states pass it in order to be successful. This is the established procedure that Americans agree with.When a procedure is complete, one must try the next procedure while acknowledging the conclusion of the procedure.As for "burning the national flag", the legislative branch has "no burning" legislation, and the executive branch supports it.But the judiciary has ruled that the "no burn" law is unconstitutional when it violates citizens' freedom of expression.In the established procedure of the United States Compact, the "flag burning" case is currently reaching this point.This is what I mean when I say they "temporarily admit it", they admit the conclusion at this stage.Now, the next step for the No Burn faction should be to try to create a constitutional amendment.Therefore, just a few days after the Supreme Court ruling was announced, President Bush suggested that a constitutional amendment should be passed to overturn the judgment.However, under the American system, two-thirds and three-quarters of the constitutional amendments are not easy to achieve. However, judging from the public opinion at the time, it seems that there is no need to despair about passing a constitutional amendment.Immediately after the verdict was pronounced, thirty-nine related resolutions were referred to the House and Senate calling for the overturn of the Supreme Court's decision.The Senate voted 97 to 3 and the House of Representatives 411 to 15 each passed a resolution expressing concern over the verdict.At the same time, sixteen state legislatures passed resolutions criticizing the Supreme Court's decision.Such resolutions are a way of expressing public opinion in the United States and are not legally binding.Polls also show that 65 percent of the population disagrees with the Supreme Court ruling.Seventy-one percent favor the adoption of a constitutional amendment to address the issue. As a result, Congress passed a new piece of legislation, the Flag Protection Act of 1989.It emphasizes that the American flag is different from other symbols and has intangible historical value. Therefore, it is forbidden for anyone to intentionally damage, deface, or burn the flag, and it is forbidden to lay the flag on the ground or trample on the flag.President Bush immediately signed it.Congress actually relied on public opinion to reaffirm the original anti-flag desecration law that was ruled unconstitutional by the Supreme Court.It is very rare for Congress to challenge the judiciary by relegislating. Just hours after Congress passed the law, a flag was publicly burned in front of the Capitol in a show of defiance.The original extremely rare "burning flag" cases, the incidence of crimes has risen sharply.This is a deliberate challenge to justice by a faction in the minority.The law of a democratic system is the contract of the majority, and does not naturally guarantee the fair treatment of the minority.Independent courts of last resort for minorities seeking justice and protection.In order to overturn a law, you can only give the Supreme Court a chance to decide an appeal case by defying the law. Since there are precedents in the Johnson case, these cases are often ruled unconstitutional by the judges in the district court.As a result, two more cases were appealed to the Federal Supreme Court.The Supreme Court joined the two cases and heard arguments again to examine the controversial flag-burning issue.As a result, the Supreme Court once again ruled 5-4 that the Flag Protection Act of 1989 was also unconstitutional. We have seen that after a problem arises, it may go through a long period of deliberation involving the three independent branches of the government and the public. "Burning the national flag" is like a pancake, which is being toasted over and over again.During this process, various opinions were repeatedly discussed in court and on TV, and the public and elites fully communicated.After listening to various opinions, the people also wake up from pure emotional impulse and start to think at a deeper level.Such discussions and exchanges are a way for Americans to quietly improve their national quality.After the Supreme Court's second ruling, some public opinion turned to understand and support the Supreme Court.Congress has also begun to gradually shift.The House of Representatives once passed a constitutional amendment proposal prohibiting flag burning. On December 12, 1995, when the proposal was voted on in the Senate, it was blocked by three votes. On June 12, 1997, the House of Representatives made another effort to pass the constitutional amendment proposal again with 310 votes to 114 votes, and sent it to the Bundesrat again. At the Congressional hearing, Professor Norman Dowson of the American Civil Liberties Union stated their views again.He said that since the Johnson case, the nature of the issue has not changed. The question is simple: whether to protect the flag or protect the constitution, we have to choose one or the other.He admits that the national flag is a national symbol and is related to the feelings of the people, but he believes that it is unnecessary and unwise to establish a constitutional amendment to protect the national flag.The reason why it is unnecessary is that people who damage the national flag as a political expression are actually extremely rare.He also pointed out that the concept of "blasphemy" is actually aimed at religious objects, and other objects, no matter how worthy of reverence, should not be "sanctified". He also pointed out that the most important reason for opposing the establishment of this amendment is that free political expression has been the cornerstone of American freedom for two hundred years. "One of the proud points of our system of government is our tolerance for expressions that other countries would punish mercilessly." At the end of 1998, the Bundesrat finally decided to reject the proposed constitutional amendment prohibiting desecration of the national flag. Many people believe that the legislative branch's attempt to ban flag burning is probably over, because after years of debate, more and more Americans who don't like seeing the flag burned have begun to understand the significance of the Supreme Court's decision.Some people are quite proud that after the three major branches of the U.S. government went to war, they still left freedom to the people. In February 1999, members of the Democratic and Republican parties jointly proposed a constitutional amendment proposal to the House of Representatives. It is said that 236 members jointly signed it.Civil society organizations are also continuing their relentless advocacy and efforts to prevent the passage of this constitutional amendment.A new wave of competition is beginning again. In the past few decades of legislative and judicial confrontation, the result of "not allowing the burning" has actually appeared many times.Both Supreme Court rulings were by one vote. When the Senate voted on the constitutional amendment proposal for the first time, it was only three votes away.If there hadn't been a difference of this number of votes, the burning of the flag would have been banned in the United States. We have seen that few people in the United States burn the national flag, but once someone vents their anger on the national flag, they are actually challenging the authority of the government and mainstream public opinion in society.When such authority and mainstream are challenged, a mature society should have a set of procedures that are very clear, detail-set, recognized by all the people, and operable to ensure that a non-mainstream concept is put forward, Discuss and verify.In such a process, the society enters into rational thinking as much as possible, and draws their continuous speculation and conclusions one after another.There may be repetitions, and the correct conclusion may not be drawn at a certain stage, but every step they take is solid, and society is progressing slowly in this way, with strong logic.What really matters here is who should decide such a question, and by what procedure.In contrast, the conclusions are trivial. There is no doubt that the definition of a democratic society is a society in which the majority makes the rules, but if its goal is freedom, it will not kill non-mainstream ideas at will.A non-mainstream concept may not be accepted by the majority of people in the end, but after such a "process", even if it loses, it will be convinced. In fact, after the American flag was "allowed to be burned", few people burned the national flag.As everyone said, why do you still burn a country that even "allows the national flag to be burned"?