ISSN 1062-7421
Vol. 12 No. 3 (March 2002) pp. 153-159.

FLAG BURNING AND FREE SPEECH: THE CASE OF TEXAS V. JOHNSON
by Robert Justin Goldstein Lawrence: University of Press of Kansas, 2000. Cloth $35.00. ISBN: 0-70006-1053-7; Paper $14.95. ISBN: 0-7006-1054-5.

FLAG BURNING: MORAL PANIC AND THE CRIMINALIZATION OF PROTEST by Michael Welch. New York: Walter de Gruyter, Inc., 2000. 220 pp. Cloth $59.95. ISBN: 0-202-30651-8; Paper $29.95. ISBN: 0-202-30652-6

Reviewed by Joseph F. Kobylka, Department of Political Science, Southern Methodist University

At the conclusion of the 1988 Term of the United States Supreme Court, KRLD (a leading news radio station in Dallas, Texas) called me to do an interview assessing the Supreme Court's work that year. It had been an extraordinarily significant term, as the "Reagan Court" was just finding its bearings. It was the term of WEBSTER v. REPRODUCTIVE HEALTH SERVICES (1989), WARDS COVE PACKING CO. v. ATONIO (1989), and PATTERSON v. MCCLEAN'S CREDIT UNION (1989). It was also the term of TEXAS v. JOHNSON, and given that the case came from Dallas, I was not surprised when the interviewer led with questions about it. After those questions, I turned to O'Connor's concurrence in WEBSTER and the budding revolution in judicial interpretation of federal civil rights statutes. The interviewer, however, kept coming back to JOHNSON. Soon it became quite clear that JOHNSON was really all he wanted to discuss. Despite my assurance that the case was of interest in only a limited sense, and that the real story of the Term laid elsewhere, flag burning was the topic de jour. Given the hubbub that occurred nationally over the next few months, it became clear this was not just a "Dallas issue."

The two books under consideration here look at this episode, and assess it from very different perspectives. Robert Justin Goldstein is a political scientist, and his take on the issue is generally framed by the concerns of that discipline, though his account is largely in narrative form. Michael Welch is a sociologist, and JOHNSON really is just a springboard from which he launches into an examination of the larger social forces at work in society, particularly since the 1980s. He treats the phenomena here as instances of efforts at "social control," and ultimately assesses it from the perspective of a theory of "moral panic." Goldstein and Welch approach the subject with the same normative posture-both make clear that they think that flag burning is constitutionally protected, and that they have little
sympathy for those who seek to outlaw it-but Welch is less even-handed in his treatment of the protagonists, at times treating the forces of "social control" with barely concealed contempt. Although the subject matter is the same, the approaches taken by these authors lead them to focus on and stress different elements of it. In the end, Welch's work is more social-scientific in framework and style, but Goldstein's is the better read and affords the

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reader more latitude to weight the elements of the controversy independently.


The subtitle of Goldstein's book, FLAG BURNING AND FREE SPEECH: THE CASE OF TEXAS v. JOHNSON, is somewhat misleading. This closely researched and highly informative volume dispatches with the events leading up to the Johnson decision, including a review of the Court's prior flirtations with
this issue, in its first 107 pages. Here, Goldstein traces the ascendancy of the American flag to a position of prominence (an importance that really began with the Civil War) and early efforts to protect it--initially from commercial exploitation, then as a backhanded way to assert a national identity in the wake of immigration from central and southern Europe, and finally as an effort to assert symbolically American values against the perceived radicalism of 20th century political movements. In laying out this history, he nicely demonstrates the role of interest groups in the process (e.g., the Daughters of the American Revolution, the American Flag
Association, and veteran's groups), and the easy accommodation of their concerns by politicians of the day.

In his early chapters, Goldstein also examines the early (pre-JOHNSON) prosecutions of flag burning, and their treatment by the courts. Although the Supreme Court did not hear flag-burning cases until the Vietnam War period, it had handed down decisions relevant to the issue. In HALTER v. NEBRASKA (1907), it upheld a prosecution-with little concern for First Amendment issues-of a beer company for putting Old Glory on the label of one of its products. As the Court, though, began reviewing expression issues with more rigor, state restriction on speech-spoken and symbolic-came under greater scrutiny and fared less well. Central to the story of flag burning are STROMBERG v. CALIFORNIA (1931) and WEST VIRGINIA v. BARNETTE (1943). Although the Warren and Burger Courts tiptoed around the issue in STREET v. NEW YORK (1969), SMITH v. GOGUEN (1974), and SPENCE v. WASHINGTON (1974), the doctrinal writing was on the wall. In TEXAS v. JOHNSON (1989) and U. S. v. EICHMAN (1990), that writing went from the wall into the U. S. REPORTS. His analysis of these decisions is largely descriptive, but it is well-done and highly readable. In addition to the usual opinion analysis, Goldstein works in material drawn from the papers of "two deceased Supreme Court Justices" (p. 259)-presumably Brennan and Marshall-extensive interviews with many of the primary combatants, and the oral arguments before the Court. All of this is well integrated, and makes for a good read-one well-suited to an undergraduate audience.

For all of the merits of the first section of the book, Goldstein's story-while remaining essentially in narrative form-turns more analytical and interesting beginning with Chapter Five. Here he takes up the reaction to the JOHNSON decision, and the tale grows richer. In essence, this portion explores why a decision with no policy import of any significance exploded in the public mind. His discussion integrates analysis of characters otherwise marginal to the national drama, groups that became central to the conflagration, members of Congress and the first President Bush, and the media. In so doing, he paints a vivid and somewhat disturbing picture of the
politics of symbolism that pervade our current political culture.


The Court's decision in JOHNSON unwittingly began a political firestorm. Goldstein's narrative approach covers, but

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obscures somewhat, the various dimensions of this maelstrom. For purposes of simplicity and brevity here, let me categorize them as players and strategies. Goldstein and Welch identify players in this drama as activists and their attorneys, various groups, the media, the Bush Administration, Congress, and scholars. Interestingly, the Court plays a decidedly secondary, though central, role in their analyses. The strategies the authors detail vary both by player and point in time.

Gregory Lee Johnson, Shawn Eichman, the Revolutionary Communist Party, and "Dread Scott" Tyler would be bit players in any history of American politics in the latter portion of the 20th Century. Yet, it was their actions that created the whirlwind that fed this fire. Johnson and Eichman, stalwarts of the RCP, torched the flag and ignited the two cases ultimately resolved by the Supreme Court; Tyler an avant-garde artist, conceived the now infamous "What is the Proper Way to Display a U. S. Flag?" exhibit at the School of the Art Institute in Chicago. Johnson's burning of the flag at the 1984 Republican Convention marked the genesis of the modern desecration debate, but the Court's decision, and the media's reporting of it, brought it squarely into larger public awareness. The media's role here cannot be
downplayed. Goldstein and Welch demonstrate the extraordinary coverage the JOHNSON decision received, putting the issue firmly in the laps of Americans who, predictably, were shown in public opinion polls to believe that flag burning was not protected by the First Amendment and that an Amendment was needed to protect "Old Glory." Welch focuses a chapter on this phenomenon, doing content analysis of newspaper coverage of the controversy. He finds the reportage roughly balanced between advocates of flag protection and defenders of speech, but notes that editorials were strongly opposed to protective legislation. Goldstein gives more attention to television, and focuses more on the sheer volume of coverage than to its drift. If most Americans get their news from TV, Goldstein's approach-especially given the visual nature of this controversy-probably tells us more about the role of the media here. Indeed, Goldstein notes that five days after the decision was handed down, the flap "had completely disappeared from the network news programs" (p. 119). Although the press coverage waned, the flames it kindled continued to burn. The larger political system was activated, caught in the backdraft of a short-lived fire in Dallas.

If the initial half-life of media coverage of the controversy was so short, how do we explain the subsequent traction of the issue? We find the answer in the politics of symbolism. Members of Congress hit the airwaves immediately after JOHNSON came down, and their legislative activities carried on after the media turned its attention elsewhere. Further fueling the drive to "do something" about flag burning, President Bush-who adroitly manipulated the American flag during his 1988 campaign against Michael Dukakis, "a card-carrying member of the ACLU"-called a press conference six days after JOHNSON to propose a constitutional amendment to overturn the decision. Three days later, he returned to the theme in a speech given at the dedication of the Iwo Jima Memorial. Bush's involvement fanned the political flames. Though the media coverage of this hubbub had cooled shortly after the Court announced JOHNSON, Bush's press conference and speech got substantial coverage. If they were leery of charges of political opportunism, members of Congress soon got over it and carried the battle on even when the general public-hostile to flag

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burning, but not obsessed with it-lost interest. Moves to amend the Constitution and pass legislation to prohibit flag desecration in a "content-neutral" way abounded, with patriotic groups-largely veterans-leading the way. In short, the brief public conflagration over JOHNSON was sufficient to spark to action specific political actors. Hearings were held, with scholars presenting a variety of "expert" positions on proposed legislation and amendments, and the Bush Department of Justice weighed in before Congress and in the courts. Once Congress passed the Flag Protection Act (FPA) of 1989, select political activists burned more flags, prosecutions were undertaken, and the issue largely cooled until the Court's decision in EICHMAN.

Goldstein gives the institutional dynamics surrounding the FPA substantial attention. On the "pro-protection" side, he finds that President Bush, members of Congress (particularly Republicans), and "patriotic" interest groups had a tough time turning from the politics of exploiting the symbolic issue to those of successfully pressing their preferred policy response. Reading, correctly as EICHMAN made clear, the Court's decision in JOHNSON to bar ANY statutory path around the constitutional issues presented by flag burning, they unsuccessfully sought an amendment to the Constitution. Part of their failure stemmed from the bickering among proponents of protection. After the White House announced that it would propose an amendment to overturn JOHNSON, Republican congressional leaders took umbrage. Goldstein nicely captures the dynamics here:

"Senate Republican leader Dole and House Republican leader Michel immediately protested privately that they had been drafting their own language for an amendment and demanded to be credited for authoring any text endorsed by Bush. According to a White House source, Dole and Michel 'made clear they wanted their own language' and "wanted to be able to say they wrote the whole damn thing,' with the result that Bush issued orders to 'let the Hill do what it wanted' because he 'just wanted it taken care of and didn't care about authorship.'" (p. 121).

Though the congressional Republicans won this battle, they may have done greater harm to their cause long-term, as President Bush never was fully folded back into the fray. When the Amendment came to a floor vote in the Senate, it received only 51 votes and failed. In part, Goldstein argues, this was because active administration support ebbed after it handed responsibility for the amendment to its congressional allies. Indeed, Senator Kennedy-an amendment opponent-said just before the vote that the "silence from the White House over the past few days has been deafening." Majority Leader Dole concurred, noting the matter "wasn't the highest priority at the White House" (pp. 165-66). The congressional Republican leadership's decision to shunt the Bush Administration to the side-and the
Administration's willingness to be so shunted-was a major strategic blunder.

The indifference the Bush administration showed after its initial gush of interest made it easier for anti-amendment forces to win the day. The politics of symbolism, like most politics, is largely a game of strategy. Although the motivations of the players were complicated-and both parties had their eyes on the 1990 off-term elections, further muddying them-the anti-amendment forces successfully manipulated the environment in a way that derailed the

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proposed amendment while providing members of Congress political cover back home. For them, the choice was NOT whether to "bravely do nothing"-though
this is the posture former Solicitor General Charles Fried, The American Bar Association, and the American Society of Newspapers took-and let the decision
stand, but how to do SOMETHING that would preserve their political viability and tamp down the constitutional flames. This strategy, in part, was framed
by the Democrats' not unreasonable suspicion that Republicans were pressing this issue for partisan purposes with an eye to the 1990 elections. The Democrats, at least in part, sought to dowse the flames with their "Flag Protection Act." Welch, given his focus on the systemic effects of "moral panic" brushes past this, giving it only three pages of discussion. Goldstein, with his emphasis on the political, chronicles this strategic give and take more fully.

The anti-amendment strategy, simply put, was deflect, delay, and defuse. Given the furor JOHNSON unleashed, and the potentially dicey situation that opposing any legislative response would pose to those who believed flag burning was protected by principles of free expression, an amendment was the worst possible outcome. Democrats, though not universally opposed to overturning JOHNSON, controlled both chambers of Congress, and they moved quickly to formulate federal legislation that was "content neutral" to protect the flag. Led by Senate Judiciary Committee Chair Joe Biden, and given academic cover by, among others, Laurence Tribe and Walter Dellinger, the Senate immediately went to work on a statute that would accomplish the goals of an amendment, but without changing the Constitution. Biden's counterpart in the House, Jack Brooks, joined this battle. What Tribe characterized as the "scalpel" rather than a "sledgehammer" approach
quickly gained favor. People for the American Way and the ACLU, groups opposed to the logic of the statute (they argued against its constitutionality in EICHMAN), "either overtly or tacitly supported the FPA" (Goldstein, 148) as a means of derailing the proposed amendment by offering an alternative. When the amendment failed to pass the Senate, Congress enacted the FPA and Bush allowed it to become law without his signature. Not only did anti-amendment forces successfully torch the protectionists' desire to change the Constitution, but they also gave cover to politicians facing reelection. Perhaps more important, they bought time-time that would allow residual public furor to cool and dissipate.

Predictably, the same cast of characters who began this saga-Johnson, Eichman, and their attorney William Kunstler-mobilized to challenge the FPA, burning flags in staged events on the Capitol steps in Washington, DC, and Seattle, Washington. The Bush Administration, placed in the uncomfortable position of prosecuting under a law many in it believed unconstitutional, maneuvered awkwardly through the lower courts, shifting its position on the FPA, ultimately arguing that it was a permissible "content-neutral" regulation before the Supreme Court. Kunstler, supported by the ACLU and PAW as amicus-prevailed by the same 5-4 vote as the year before. Protectionist legislators immediately brought the anti-desecration amendment back before Congress, but-with the flames no longer fanned by an impassioned public-the effort fell short of a two-thirds vote in both the House and Senate. Goldstein's last chapter, and Welch's sixth chapter, chronicle subsequent
efforts to pass an amendment, but, for at least the present, the controversy has left the

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stage, in the words of T.S. Eliot, "not with a bang, but a whimper."

In these times of magnetic American flags stuck to the backs of gas-guzzling SUVs, the debate treated in these two books seems almost quaint. Patriotism is alive and well, and flag display is all the vogue. These two books, though, serve as reminders that the problems of yesterday, like the embers of a dying forest fire, can rage anew if the wind suddenly shifts. Goldstein's volume is better at conveying the flow of events, judicial machinations, group politics, and, in general, the institutional and process dimensions of the controversy. Its essentially narrative style sometimes obscures the more theoretical lessons about interactions between agents of protest, elected officials, groups, and the courts, but those wielding sharpened tools of analysis can easily glean them from the story he tells. Indeed, I have used this book, with success, in an introductory course in American government, to examine of the dynamics of institutional and organizational responses to sudden policy pressures.

In framing his analysis in sociological theory, Welch sometimes gets trapped in jargon that would entomb all but the initiated, but he does make clear parallels between the flag controversy and the larger dimensions of the kultenkampf of which some see the battle over flag burning to be a part. However, a decidedly "left" perspective drives Welch's analysis. In Justice Antonin Scalia's terms, Welch "takes sides in the culture wars, [and he] tends to be with the knights rather than the villeins--and more specifically with the Templars." (ROMER v. EVANS 1996: 652) The ideological sharpness of Welch's point of view may put off a number of readers. Further, seeing this controversy through the lens of a sociologist, his treatment of the events at hand may devalue both the fluidity of American political processes and the occasionally impressive autonomy of their legal institutions. In so doing, it may overly discount the breadth of civil liberties our curious socio-
political arrangements make possible. That said, he places the controversy-which, given the reaction to a Court decision with few policy implications, seems minor compared to other issues-in its larger context, enabling those of us who focus on the political to appreciate some of the profound social forces at work here. Symbols, though intangible, often tie a people together; their treatment can sometimes drive them apart.

CASE REFERENCES:

HALTER v. NEBRASKA, 205 U.S. 34 (1907).

PATTERSON v. MCCLEAN'S CREDIT UNION, 491 U.S. 164 (1989).

ROMER v. EVANS, 517 U.S. 620 (1996).

SMITH v. GOGUEN, 415 U.S. 566 (1974).

SPENCE v. WASHINGTON, 418 U.S. 405 (1974).

STREET v. NEW YORK, 394 U.S. 576 (1969).

STROMBERG v. CALIFORNIA, 283 U.S. 359 (1931).

TEXAS v. JOHNSON, 509 U.S. 350 (1989).

U. S. v. EICHMAN, 496 U.S. 310 (1990).

WARDS COVE PACKING CO. v. ATONIO, 490 U.S. 642 (1989).

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WEBSTER v. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490 (1989).

WEST VIRGINIA v. BARNETTE, 319 U.S. 624 (1943).

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Copyright 2002 by the author, Joseph F. Kobylka.