FLAG DESECRATION

The American flag, as a unique symbol embodying national pride and patriotism, evidences the unity and diversity which the country represents, and the varying ideals and hopes of its people. By the same token, the flag has frequently been used by those who wish to communicate opposition to—or even ridicule of—government policies.

Congress has enacted statutes that prescribe how the flag may be displayed and disposed of, and how and for what purposes it may be used. Many state laws prohibit flag "desecration" (casting "contempt" on a flag by "mutilating, defacing, defiling, burning or trampling upon" it) and "improper use" of flags (placing on a flag "any word, figure, mark, picture, design, drawing or advertisement").

In Halter v. Nebraska (1907) the Supreme Court upheld a state statute prohibiting flag desecration and use of the flag for advertising purposes. But that decision was rendered twenty years before the Court applied the first amendment to the States, and it was not dispositive when protesters later challenged the constitutionality of flag desecration statutes.

In Smith v. Gorguen (1973), the Court reversed a conviction for wearing an American flag on the seat of the pants, ruling that the Massachusetts flag desecration statute was void for vagueness. In Spence v. Washington (1974) the Court invalidated a Washington statute prohibiting the affixing of a symbol to the flag, holding that the display of a flag with a peace symbol superimposed on it was protected free expression. The Spence decision was consistent with other cases in which the Supreme Court recognized symbolic speech as a form of activity protected by the First Amendment. On the other hand, the Court has upheld statutes forbidding flag burning, concluding as in Sutherland v. Illinois (1976) that they rested on a "valid governmental interest unrelated to expression—that is, the prevention of breaches of the peace and the preservation of public order."

Norman Dorsen
(1986)