Stars, Stripes & Bars Forever

Confederate Battle Flag

American Flag

Mississippi State Flag

Hawaii State Flag

Washington (6-10-20)
BLM protestors are tearing down Confederate symbols, flags, and war memorial statues across the South. The U.S. military has banned even bumper stickers bearing the Confederate battle flag on base, and hastened to rename those bases bearing the names of Confederate historical figures from the Civil War. NASCAR has banned Southern/Confederate symbols.
Members of the Mississippi legislature have moved to change the State’s flag in response to BLM protestors clamoring for the removal of the Stars and Bars from it. The symbol has come to represent the oppression of Black Americans in the minds of many due to its adoption by some White Supremacist hate groups. Still, we do not hear of Hawaii’s State flag being defaced because it includes the Union Jack–Great Britain’s flag who we were at war with at least 3 times in our history. (War of Independence, of 1812, and the pig war in the San Juans)
Not so long ago, our federal legislature passed a law making the burning of the American flag a felony. It was a wildly popular law with both the American public as well as Congress–only 3 representatives voted to oppose it…the recent Washington Governor Mike Lowry being among them. Yet the U.S. Supreme Court struck it down, nevertheless…5 to 4, I believe. Justice William Brennan wrote for a five-justice majority in holding that defendant Gregory Lee Johnson‘s act of flag burning was protected speech under the First Amendment to the United States Constitution.
Gregory Lee “Joey” Johnson, then a member of the Revolutionary Communist Youth Brigade, participated in a political demonstration during the 1984 Republican National Convention in Dallas, of the Reagan Administration and of certain companies based in Dallas. They marched through the streets, shouted chants, destroyed property, broke windows and threw trash, beer cans, soiled diapers and various other items, and held signs outside the offices of several companies. At one point, another demonstrator handed Johnson an American flag stolen from a flagpole outside one of the targeted buildings.
When the demonstrators reached Dallas City Hall, Johnson poured kerosene on the flag and set it on fire. During the burning of the flag, demonstrators shouted such phrases as, “America, the red, white, and blue, we spit on you, you stand for plunder, you will go under,” and, “Reagan, Mondale, which will it be? Either one means World War III.” No one was hurt, but some witnesses to the flag burning said they were extremely offended.  A spectator, Daniel E. Walker, gathered the remains of the flags and buried them in the backyard of his home in Fort Worth.
Johnson was charged with violating the Texas law that prohibits vandalizing respected objects (desecration of a venerated object). He was convicted, sentenced to one year in prison, and fined $2,000. He appealed his conviction to the Fifth Court of Appeals of Texas, but he lost this appeal. On appeal to the Texas Court of Criminal Appeals the court overturned his conviction, saying that the State could not punish Johnson for burning the flag because the First Amendment protects such activity as symbolic speech.
The court said, “Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol.” The court also concluded that the flag burning in this case did not cause or threaten to cause a breach of the peace.
Texas asked the Supreme Court of the United States to hear the case. In 1989, the Court handed down its decision.
The opinion of the Court came down as a controversial 5–4 decision, with the majority opinion being authored by Justice William J. Brennan, Jr. and joined by Justices Thurgood MarshallHarry BlackmunAntonin Scalia, and Anthony Kennedy. In addition to joining the majority opinion, Kennedy also authored a separate concurrence. The Court first considered the question of whether the First Amendment to the United States Constitution protected non-speech acts, since Johnson was convicted of flag desecration rather than verbal communication, and, if so, whether Johnson’s burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction.
The First Amendment specifically disallows the abridgment of “speech,” but the court reiterated its long recognition that its protection does not end at the spoken or written word. This was concluded based on the 1931 case Stromberg v. California, which ruled the display of a red flag as speech, and the 1969 case Tinker v. Des Moines Independent Community School District, which ruled the wearing of a black armband as speech.
The Court rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” but acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court asked whether “an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.”
The Court found that, under the circumstances, Johnson’s burning of the flag “constituted expressive conduct, permitting him to invoke the First Amendment.” “Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent.” The court concluded that, while “the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word,” it may not “proscribe particular conduct because it has expressive elements.”
Texas had conceded, however, that Johnson’s conduct was expressive in nature. Thus, the key question considered by the Court was “whether Texas has asserted an interest in support of Johnson’s conviction that is unrelated to the suppression of expression.”
At oral argument, the state defended its statute on two grounds: first, that states had a compelling interest in preserving a venerated national symbol; and second, that the state had a compelling interest in preventing breaches of the peace.
As to the “breach of the peace” justification, however, the Court found that “no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag,” and Texas conceded as much. The Court rejected Texas’s claim that flag burning is punishable on the basis that it “tends to incite” breaches of the peace, citing the test from the 1969 case Brandenburg v. Ohio that the state may only punish speech that would incite “imminent lawless action,” finding that flag burning does not always pose an imminent threat of lawless action. The Court noted that Texas already punished “breaches of the peace” directly.

Kennedy’s concurrence

Justice Kennedy wrote a concurrence with Brennan’s opinion Kennedy wrote:
For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. . . . Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.

Rehnquist’s dissent

Brennan’s opinion for the court generated two dissents. Chief Justice William H. Rehnquist, joined by Justices Byron White and Sandra Day O’Connor, argued that the “unique position” of the flag “justifies a governmental prohibition against flag burning in the way respondent Johnson did here.” Rehnquist wrote:
The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another “idea” or “point of view” competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

However, the Johnson majority found the lack of evidence for flag protection in the Constitution that necessitated the claim of “uniqueness” to counter indicate protection of the flag from free speech. They answered the “uniqueness” claim directly: “We have not recognized an exception to [bedrock First Amendment principles] even where our flag has been involved. … There is, moreover, no indication—either in the text of the Constitution or in our cases interpreting it—that a separate juridical category exists for the American flag alone…We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.”
Rehnquist also argued that flag burning is “no essential part of any exposition of ideas” but rather “the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.” He goes on to say that he felt the statute in question was a reasonable restriction only on the manner in which Johnson’s idea was expressed, leaving Johnson with, “a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy.” He quoted the 1984 Supreme Court decision in City Council of Los Angeles v. Taxpayers for Vincent, where the majority stated that “the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places.”

Stevens’ dissent

Justice John Paul Stevens also wrote a dissenting opinion. Stevens argued that the flag “is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations. . . . The value of the flag as a symbol cannot be measured.” Stevens therefore concluded, “The case has nothing to do with ‘disagreeable ideas.’ It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset,” and that Johnson was punished only for the means by which he expressed his opinion, not the opinion itself.

Subsequent developments

The Court’s decision invalidated laws in force in 48 of the 50 states. More than two decades later, the issue remained controversial, with polls suggesting that a majority of Americans still supported a ban on flag-burning.  Congress did, however, pass a statute, the 1989 Flag Protection Act, making it a federal crime to desecrate the flag. In the 1990 Supreme Court case United States v. Eichman, that law was struck down by the same five person majority of justices as in Texas v. Johnson (in an opinion also written by Justice William Brennan). Since then, Congress has considered the Flag Desecration Amendment several times. The amendment usually passes the House of Representatives, but has always been defeated in the Senate. The most recent attempt occurred when S.J.Res.12 failed by one vote on June 27, 2006.
Yet the antebellum South continues to be seen as emblematic for the proposition of slavery and the root of the Civil War. Little heed is given by modern historians to the fact the South fired the opening shot of that war on Ft. Sumter, a federal island fort guarding a southern port.
What led to the outbreak of the bloodiest conflict in the history of North America?
A common explanation is that the Civil War was fought over the moral issue of slavery.
In fact, it was the economics of slavery and political control of that system that was central to the conflict.
A key issue was states’ rights.
The Southern states wanted to assert their authority over the federal government so they could abolish federal laws they didn’t support, especially laws interfering with the South’s right to keep slaves and take them wherever they wished.
Another factor was territorial expansion.
The South wished to take slavery into the western territories, while the North was largely committed to keeping them open to white labor alone.
Meanwhile, the newly formed Republican party, of whom many were strongly opposed to the westward expansion of slavery into new states, was gaining prominence.
The election of a Republican, Abraham Lincoln, as President in 1860 sealed the deal. His victory, without a single Southern electoral vote, was a clear signal to the Southern states that they had lost all influence.
Feeling excluded from the political system, they turned to the only alternative they believed was left to them: secession, a political decision that led directly to war.
Today, the Lincoln Memorial pays homage to a man reputed to be The Great Emancipator. If so, it was a long time in coming…1-1-1863 to be exact, when the Emancipation Declaration, intended to cripple the South militarily as much as advocate for human rights, was ordered. In 1862, President Abraham Lincoln is known to have greeted Harriet Beecher Stowe, the author of Uncle Tom’s Cabin, with “Well, if it isn’t the little lady who started the War!” Nor did the Proclamation ban slavery in the North, but in the South only.
On August 1862, Lincoln stated to Horace Greely: “If I could save the union without freeing any slaves I would do it; and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.”–hardly the words of a committed abolitionist.
The vast majority of Confederate soldiers were poor white farmers who did not own slaves or have designs to. They were, however, zealously loyal to their home states and families. The privations, maiming, and deaths they suffered defending these were of Biblical proportions. Shelby Foote, a venerable Southern historian tells the story of a Confederate foot soldier being interrogated by by his Union captors. “What are you fighting for anyway, Reb?” they demanded. “Because y’all are down here,” he drawled. That’s not a bad answer to a foreign invader.
So here we are today in the midst of emblems, symbols, semantics, and the thought police–either self appointed, or requisitioned. Even cameras or journalists in public venues are no longer politically correct among militant leftists despite their utility in revealing incidents like the Rodney King beating or death of George Floyd. One has to wonder whether Civil War reenactments will be next to face political opprobrium? Jeeze, people, they’re just fricking rags, not sacred relics!
Many symbols, memorials, statues, and hymns stir the emotions. The English conquerors once banned bagpipes in Scotland for that very reason. Those emotions and the inclination to express them are as sacred as any human rights can be. They are not to be censored, censured, banned, or prohibited by government, popular appeal, or private intimidation/bullying as they belong to each of us as part of the human condition, our inalienable natural rights. Anything less is unAmerican.
Some of us are familiar with the Battle Hymn Of The Republic. A sadder Civil War song was Come Rally Round The Flag, also known as the Battle Cry Of Freedom. But Southern soldiers had their own equally passionate version of this tune. Listen to it before dismissing Southern talismans as racist or oppressive. What freedoms we have must be regularly exercised if we are to preserve them. Or as Benjamin Franklin opined when asked by a woman as he exited the Constitutional Convention in Philadelphia, “Mr. Franklin, what have you brought us?” “A republic, Madam,” he replied, “if you can keep it!”

Perhaps one black American woman put it most aptly when asked what she thought of these Civil War reenactments, especially by Southern enthusiasts. “They can refight that war as often as they please,” she drawled, “Just as long as they remember: They lost!”

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