The desecration of the American flag - 23 June 1989

I've been trying – and failing – to recall an historical coincidence quite so startling as that of two events that happened on the same day this past week, one in Beijing, the other in Washington.

Just as the Chinese government was carrying out the first public executions of young men who took part in the recent violent protests, the Supreme Court of the United States was overturning the conviction of a young man who had in public doused with kerosene an American flag and set it on fire, while his fellow protesters chanted "America the red, white and blue, we spit on you".

Now this happened outside the Republican Convention in Dallas in the summer of 1984. The young man was arrested and eventually convicted of violating a Texas law, which defines as a crime the act of desecrating the flag of the United States. The man's case went up to the Texas Court of Criminal Appeals, which overturned his conviction.

Inevitably, Texas then took the case up to the final arbiter, the Supreme Court of the United States. I keep saying of the United States, because each state has its own supreme court, which of course in any disputed case must yield eventually to the judgment of the national supreme court.

Only two states, Alaska and Wyoming do not have statutes prohibiting the burning of the flag. Wednesday's decision in Washington, therefore, has the effect of declaring unconstitutional the flag desecration laws of the other 48 states.

This ruling immediately struck a cleavage in popular opinion expressed at one extreme by the president of a liberal lobby who declared the courts judgment to be a victory for freedom of speech and, at the other extreme, by the national commander of the American Legion who said "his feeling was one of first anger, then extreme sadness".

On the court itself, Justice Brennan, for the majority harked back to the oldest or the most entrenched principle in defence of free speech by saying, "the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable". For the dissenting minority, Justice Steven said "the creation of a federal right to post bulletin boards and graffiti on the Washington monument might enlarge the market for free expression, but at a cost I would not pay". Even at that, it was a very close call – the majority was by five to four.

The supreme court's sole but mighty function is to apply the text of the Constitution to a particular case in which the rights of an individual may have been denied or violated. Only by extension of its rulings do they apply to other, similar cases, though legally those cases remain still untouched and may be appealed on their own.

There must be several, perhaps many, other cases pending of desecrating the flag, but now, as a practical matter of law and governing they will almost certainly be dropped. That's what we mean when we say that the desecration laws of 48 other states have been overturned.

Still, the whole topic of flag burning is not settled once for all – it will have occurred to you, as it did to many of us when the first word of the courts ruling came out, that there are statutes here as in most countries against causing a public disturbance and/or inciting to riot.

Justice Brennan who wrote the majority decision did add "we do not suggest that the First Amendment forbids a state to prevent imminent lawless action", which means that this decision in the Dallas case has left open a state's right to prosecute somebody who burns the flag as a casual or deliberate act of vandalism without expressing any social or political purpose.

The young man in Dallas was very downright about the purpose of his act. He was burning the flag, he said, because it was a symbol of American imperialism.

You'll have inferred that the particular clause of the Constitution which the nine judges found applicable, was the first of the 10 amendments added later to the original seven articles. Those 10 amendments are known as the Bill of Rights, and the first of them consists of a single sentence, which says, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or of the right of the people peaceably to assemble and to petition the government for a redress of grievances".

That single sentence, in the past quarter-century or so, has borne the weight of, I should guess, more cases, more appeals, more disputes than most of the other nine articles of the Bill of Rights, especially as they affect sexual morality.

In a time when public morality has been enlarged, some people say abolished, the First Amendment has been successfully claimed to justify every sort of behaviour that would in previous centuries have been thought scandalous, obscene, criminal.

It is in this country, no accident that our newstands of stationers abound with scandal sheets and sex magazines that only 20,30 years ago would have had their publishers very quickly in jail. The same is true of many of our cable television channels, which nightly flaunt genital exhibitions, show naked prostitutes soliciting customers through telephone numbers and apparently do a roaring business from coast to coast.

This epidemic of pornography is not, I say, just an accident; it has flourished on the ruling of the Supreme Court in particular cases, which ended by giving a licence to seeming obscenity.

Fifty years ago or more, the court allowed the publication of James Joyce's Ulysses on the grounds that its total effect was emetic rather than aphrodisiac, then the test was social purpose that let in DH Lawrence. After him, the floodgates were open; an erotic magazine was all right if it was not promoted by prurient advertising. Two years later, the court ruled in effect that there was no national definition of obscenity, it was up to publishers, film-makers, whoever to guess what a particular community would consider obscene.

By now, apparently, there is nothing that a litigant dare conclude a whole community would find obscene – somebody, somewhere will cite the First Amendment and they've been doing it incessantly, so that an appeal to the First Amendment, to the greatest possible freedom of speech, is regularly upheld.

Cole Porter's felicitous lyric has now the force of law. Writers who once used much better words now only use four-letter words writing prose – anything goes. Apart from obscenity, which today even the Supreme Court finds legally impossible to define, the widening latitude has been given to other interpretations of freedom of speech.

But this flag-burning decision will outrage many Americans beyond the shock of this single incident, beyond perhaps the understanding of foreigners, because of the long and precisely-detailed tradition of how the flag is to be displayed.

First, the war department in 1923 circulated a list of rules on usages of the American flag. In 1976, a joint resolution of both Houses of Congress codified these existing rules and customs that the flag must be hoisted at dawn and lowered at sunset, must never touch the ground or a building it is hung from, no other flag maybe flown above it in auditoriums, it must stand behind the speaker, when it's displayed horizontally against a wall that the stars must be uppermost and so on and on, through all the subtleties of etiquette that are usual among the armed forces of most nations.

But there is one prohibition which, while perhaps not unique to this country, was odd enough to cause a funny disruption of Anglo American relations during a tense period of the Second World War. This is the rule, which says "that the flag may never be used as decoration merely, curtains, cushions or be represented in any form in an advertisement".

Now this, I remember, was to me something quite new, having come from a country in which pictures, paintings, representations of the members of the Royal Family with or without the flag were a regular feature on cushions, boxes of chocolate and so on.

The funny hullabaloo I'm thinking off happened in, I believe, the spring of 1943 when the first massive wave of GI American soldiers began to pour into Britain. A manufacturer of flags in the Midlands generously decided to play his part in cementing Anglo American friendship by making, at his own expense, thousands of – how shall I put it – what were then known in Britain as ladies knickers (in this country as panties).

They were to be, they were, imprinted with a miniature American flag, they were to be distributed as a gesture of gratitude and goodwill to the incoming hoards of GIs who, presumably, would cherish them as reminders of home sweet home or send them home to their wives or girlfriends. It was a gesture greatly appreciated by the board of trade and the foreign office.

The distribution began. Shock and outrage at the American Embassy in London, aftershock at the foreign office, London was in a tizzy, why were the Americans not merely ungrateful, but insulted?

Here in New York a coded appeal came in to the offices of the BBC, would Cooke please do an emergency broadcast to throw some light on the American heat? I promptly did a talk, the only talk I've ever done till now on usages of the American flag. To print the image of the flag on a commercial item was forbidden in this country. To put it on a pair of panties was a blasphemy as far as thought can reach.

The American ambassador despatched a swift protest, the foreign office promptly apologised, the shipment of all those decorative panties was suspended, the GIs were greatly amused.

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