The Supreme Court decision in the case of Street v. New York was not unanimous. Four of the nine justices disagreed with the ruling — not because they felt that it was appropriate to punish a person for using words that cast contempt on the flag, but because they didn’t believe that this was the question facing the court. Instead, they insisted that the real question was the constitutionality of laws banning the burning of an Ameican flag in order to cast contempt on the flag.
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?”
Chief Justice Warren’s dissent castigated the others for this and made good arguments for why they should have recognized that flag desecration was the issue at hand. He stated that the government has “the power to protect the flag from acts of desecration and disgrace,” but didn’t go into detail why since it played no role in the Court’s ruling.
Usually a champion of free speech rights, Hugo Black wrote in his dissent:
-
It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense. It is immaterial to me that words are spoken in connection with the burning. It is the burning of the flag that the State has set its face against.
Black seems to suggest that it’s legitimate to ban an action regardless of whether the actor intends to communicate any message by it. By this reasoning, the government may ban people from waving flags or carrying signs the bear only symbols rather than words — after all, isn’t it “immaterial” that words are spoken in connection with these acts?
Black’s dissent fails to make a good case for the constitutionality of bans on flag burning because he does not explain where and how the government may start to ban non-speech communication, nor does he explain why and how burning a flag falls outside the protections already accorded non-verbal communication. Black simply takes it for granted that the flag deserves special protections, but this is precisely the question which had to be answered, not a premise that could simply be assumed. Black castigated the others for ignoring this issue, but he was no better in how he handled it.
In the final dissent, Justice Abe Fortas wrote:
-
The flag is a special kind of personalty. ... A person may “own” a flag, but ownership is subject to special burdens and responsibilities. A flag may be property, in a sense; but it is property burdened with peculiar obligations and restrictions. ... One may not justify burning a house, even if it is his own, on the ground, however sincere, that he does so as a protest. One may not justify breaking the windows of a government building on that basis. Protest does not exonerate lawlessness. And the prohibition against flag burning on the public thoroughfare being valid, the misdemeanor is not excused merely because it is an act of flamboyant protest.
It’s true the people can’t burn down their houses, but not for any of the reasons Fortas cites for protecting the flag and this undermines his analogy. The fact that the state has legitimate reasons to ban burning houses to send a message does not mean that the state has legitimate reasons to ban burning a flag to send a message. The only thing this analogy can establish is that a ban on burning something to send a message is not necessarily unconstitutional. The burden remains, however, on those who insist that it is constitutional and Fortas’ platitudes about the flag having a “special” personality fail to support that position.
More: Street v. New York Background, Decision, Significance »
