T-Shirts and Burning Flags
July 14, 2001
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?