The American flag is important, but is it important enough for the government to have the authority to ban both words and actions which encourage “contempt” or “disrespect” for the flag? This is the principle behind most efforts to criminalize burning or desecration of the American flag and it was the question facing the Supreme Court in the case of Street v New York. They struck down the law for its inclusion of “words” in the ban, but dodged the “action” issue.
Street v. New York: Background
Sydney Street, upon hearing of the shooting of civil rights leader James Meredith in Mississippi, took a 48-star American flag which he owned and burned it at a local intersection. A police officer who saw the burning flag arrested Street after he admitted to having set it on fire. Street was charged with violating a New York law which made it a crime to publicly mutilate or “publicly defy ... or cast contempt upon [any American flag] either by words or act.”
Street, a veteran and winner of the Bronze Star, denied admitting to burning the flag but did admit to saying “If they let that happen to Meredith we don’t need an American flag.” Convicted and given a suspended sentence, Street appealed, arguing that the law was overbroad, that it was vague and imprecise, and that damaging the flag as a means of protest was a constitutionally protected form of expression. The New York Court of Appeals affirmed his conviction and Street appealed to the Supreme Court.
Street v. New York: Decision
The Supreme Court overturned Sydney Street’s conviction. This was a complicated case to rule on because there was no record stating unambiguously what part of the law Street was convicted on — was he convicted for burning the flag or for the words he spoke, both of which the law prohibited?
Writing for the Court, Justice Harlan explained that the state offered no good reasons for why Street’s words could be sufficient to convict him of a crime. In particular, Harlan found that the state could not suppress speech in order to protect “the sensibilities of passers-by who might be shocked by appellant’s words about the American flag” or to force Street “regardless of the impact of his words upon others, [to show] proper respect for our national emblem.” Therefore, the prohibition on “words” that “publicly defy” or “cast contempt” on the American flag was found unconstitutional:
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We have no doubt that the constitutionally guaranteed “freedom to be intellectually ... diverse or even contrary,” and the “right to differ as to things that touch the heart of the existing order,” encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.
The Court was silent on the constitutionality of damaging a flag to protest something because the unconstitutionality of the ban on speech itself was sufficient to overturn Street’s conviction. Thus they ignored the flag-desecration question even though lower courts, Street himself, and the state of New York described the main issue as “May the State of New York constitutionally impose penal sanctions upon one who is charged with publicly and deliberately desecrating an American flag as a means of dramatizing his dissatisfaction with social conditions existing within our Country?”
Street v. New York: Significance
Supreme Court decision reinforced the traditional protections for politically unpopular speech. It also reinforced the idea that First Amendment protections for free speech apply to state and local laws, not just federal laws. It is unfortunate, however, that the constitutionality of burning a flag in order to communicate a message was not addressed. Perhaps the five justices in the majority would have struck down laws against flag burning, but feared the political backlash and so wanted to find another means for arriving at a pre-determined decision. Perhaps only a minority of justices would have voted for such a decision, but the means for arriving at the same conclusion was altered in order to achieve a majority. We’ll probably never know.
The actual ruling ultimately plays no role in the development of laws against burning or desecrating the Ameican flag. The dissents (discussed on the next page) are another matter, however. All four dissenting justices expressed some level of support for bans on desecrating the American flag, as well as annoyance with the majority for ignoring this issue. There arguments are consistent with the arguments used today by those who seek to criminalize desecration of the American flag.
More: Street v. New York Dissents »
