Flag Desecration as Seditious Libel

Abstract

who wrote the majority opinion, found this act was political speech and therefore allowed. To find otherwise would be to sanction prosecution for seditious libel, long discarded in the United States. The Supreme Court a year later also overturned a Congressional attempt to prosecute flag desecration under any condition. This study summarizes attempts of state legislatures and lesser courts to deal with those who use the flag as part of an act of political protest.>Burning the American flag as a demonstration of contempt for the government, the U.S. Supreme Court ruled in 1989, is political speech protected by the F i t Amendment' The ruling was met by public outrage,* attempts to amend the Constitution to prohibit flag desecration' and the adoption by Congress of the Flag Protection Act.' Justice William J. Brennan Jr. wrote the majority opinion in Texczs u. Johnson, but Chief Justice W i l l i i H. Rehnquist, in his dissent, provided the best explanation for the reaction. In a defense of the flag so i m p sioned that one observer said it was a poem rather than an opinion: Rehnquist wrote that "Millions and millions of Americans regard (the flag) with almost mystical reverence.. .% These Americans see an attack on the flag, not as expression, but as an attack on a revered object, that is, as a sacrilege.Brennan, however, did not see Gregory Lee Johnson's act of burning the flag in front of the Dallas City Hall during the Republican National Convention as heresy. In the first sentence of his opinion he noted that Johnson's act was "a means of political protest.-It was, therefore, just the type of speech the Court has found to be at the core' or at the heart! of the First Amendment's protections. The Court, for example, has found that the duty of citizens in a democracy to criticize their governorslo is at "the central meaning of the F i s t Amendment,"" and punishment for seditious libel has been found unconstitutional "in the court of history."'l In Brennan's view, then, burning the flag was an attack on government. It was, therefore, seditious libel. >Wat Hopkins is a member of the faculty in Communication Studies at Downloaded from 77. Kime v. US. 673 Fad 1381 (4th C r . W ) . 78. Lomy hypothcdxa that the conviCtim a d h.ve bcm afhnncd by the.Syane W i n 1982beolr Chief 79.150 US. 949.919 (W). Juaice B r r m diaerling frun i dmLl of onliomri 8o.Id.at951. a.fd.12544. a. Id .t25(2. 84. Id *w3. 85. Id 86. IA at 237. 87. Id al256758. 88.Sa* note 4 md rcanplnyinp tut 88.us.v.Eic)rm.R llos.crucll,uw(l~. Ju&e Burger would h m joined the bur dissenters in T u u v. Johnmm. ahbhhmg I aujority. h w y , aon not.? 36 it 1m74.

A Century of JMCQ Legal Issues in Media: Scholarly Commitment to Free Press, Free Speech, and More

“…Several articles analyze both statutory and judicial frameworks. Examples include an article on flag desecration as seditious libel (Hopkins, 1991) and an article on the reputational harm of men vs. women (Borden, 1998). In a similar vein, another JMCQ article (G. E. Stevens, 1991) examines criminal libel cases and statutes in the wake of Garrison v. Louisiana.…”