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Of T-Shirts and Burning Flags
July 14, 2001
by Steven C. Day

They're at it again.

It seems like every year the Republican leadership in Congress finds it necessary to schedule another vote on whether to amend the constitution to permit prosecutions for flag desecration. This year's instalment of that tiresome rerun will be taken up by the full House within the next few days.

So once again we have to remind ourselves that it is an unavoidable frustration of freedom that in order to protect our right to express our brilliance, we sometimes have to put up with the right of others to express their stupidity.

Twelve years ago, when the Supreme Court first held, in Texas v. Johnson (1989), that the stupid act of burning the American flag in protest constitutes free speech under the First Amendment, a cottage industry sprang up selling various paraphernalia protesting the decision. The most common example involved that great American institution, the expressive T-shirt.

Almost overnight, T-shirts started appearing with the image of the flag printed where normally the logo of a sports team or a beer company would be placed. One particularly popular item was a T-shirt sporting a picture of the flag with the words, "TRY BURNING THIS FLAG!" placed below it.

It's sort of ironic that a decision which expanded the right of political protest ended up itself generating so uniquely American a form of counter-protest: In one of the most personal ways possible, thousands of Americans made known their disapproval of a decision of the highest court in the country. It was classic free expression. In another irony, however, it was also quite clearly criminal misuse of the American flag.

Under the Uniform Flag Act, which was in effect in most states at the time, it was a crime to manufacture, sell or possess an "article of merchandise" upon which was placed the image of the flag "in order to advertise, call attention to, decorate, mark or distinguish such article." There can be little doubt that a T-shirt is an article of merchandise. It is equally obvious that a flag printed on a T-shirt is intended to call attention to, decorate, mark or distinguish the T-shirt.

In short, all those Americans, who, in absolute good faith, purchased and wore the flag T-shirts to protest the Supreme Court's decision decriminalizing flag desecration were, by legal definition, guilty of a form of flag desecration themselves. They were not, of course, in any actual jeopardy of being prosecuted. In a final irony, they were protected by the very same Supreme Court decision they were protesting.

Funny how that worked out, huh?

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