Flag

Flag

The official banner of a state or nation, often decorated with emblems or images that symbolize that state or nation.

On the U.S. flag, 13 horizontal stripes (in red and white) represent the original 13 colonies. The union is represented by 50 white stars, for the 50 states, arrayed on a field of blue. The U.S. flag is sometimes called the Stars and Stripes, Old Glory, or the Red, White, and Blue.

Titles 4 and 36 of the U.S. Code govern when, where, and how a flag may be displayed; how a flag may be used; and the proper means of disposing of a worn or soiled flag.

The Stars and Stripes became a popular and revered symbol of the United States during and after the Civil War. The Union's victory over the Confederacy and the return to a united country engendered patriotic fervor that was embodied in this symbol. When large numbers of immigrants entered the United States during the late nineteenth and early twentieth centuries, the flag was appropriated as a symbol of nationalism and patriotism by groups that felt that the cultures and customs of the new citizens threatened national unity and security. During the same period, as the advertising industry grew along with rapid industrialization, the flag was commonly used for commercial purposes. Flags or images of flags were used to promote everything from toilet paper to chewing gum. The flag was also appropriated for political gain. In 1896, the campaign manager for Republican presidential candidate William McKinley distributed millions of flags for use at McKinley's rallies. The McKinley campaign also distributed buttons bearing the likeness of a flag, as symbols of support for the candidate.

What is the Appropriate Use of the Confederate Flag?

After months of open and contentious debate, the General Assembly of the State of South Carolina agreed in May 2000 that the Confederate Flag would be taken from the State House dome and placed at the Confederate Soldiers' Monument. State Governor Jim Hodges signed the bill, which was supported by the South Carolina Chamber as part of the Business Agenda and the Courage to Compromise coalition, on May 30. "Today, we bring this debate to an honorable end. Today, the descendants of slaves and the descendants of Confederate soldiers join together in the spirit of mutual respect," Hodges stated in a speech just prior to the signing. The actual relocation of the flag on July 1, 2000, complete with pomp and circumstance, was attended by 3,000 people. The official ceremony lasted eight minutes. The fallout lasted for eight months.

In 1994, Jim Folsom, Jr., the governor of Alabama, decided to move a Confederate flag from the state capitol's room to a nearby war memorial. His decision was partially a response to pressure from the National Association for the Advancement of Colored People (NAACP). Afterward, South Carolina was the only former member of the Confederate States of America to fly the Confederate flag on its capitol building, though some Southern states still used it as part of their flag design. The issue waxed and waned in South Carolina's legislature for the next several years without resolution. In late 1999, the NAACP again mobilized, calling for a boycott of all state tourism, athletic contests, cultural events, and film-making in South Carolina until the flag was removed.

Benedict College, an historically black institution, canceled its September 2, 2000, football game with South Carolina State University after the latter refused to move the game from its campus in Orangeburg, South Carolina, to Charlotte, North Carolina. This event was followed by Bryn Mawr College, Haverford College, and Swarthmore College all canceling spring-break trips to South Carolina's coast. Furthermore, the National Collegiate Athletic Association's Division I Board of Directors threatened to move games in the men's basketball tournament out of South Carolina if the flag was not removed from the state dome.

The issue returned to the state legislature's general assembly, where, following several weeks of emotional and grueling battle, a compromise agreement was reached in May 2000 by a House vote of 66-43 and a Senate vote of 35-8. The flag came down and took up its new home at the Solders' Memorial. Senator Arthur Ravenel claimed, "The only people that seem to be unhappy are the extremists."

The NAACP, however, took umbrage with the new location, complaining that the flag had become more visible than ever. It sent out mailings, urging the continuation of its state boycott and arguing that the flag also should be removed from all state grounds, including the Soldiers' Memorial. State Senator Robert Ford, a black supporter of the compromise, defended its new location, stating that, contrary to the NAACP's contentions, the flag was not "in anybody's face" in its new location. House majority leader Rick Quinn remarked that the NAACP had "essentially become professional agitators and I think someone needs to stand up to them." Several hundred flag supporters gathered at the ceremony and vowed that the flag would again rise above the state capitol.

After the flag's removal in South Carolina, Georgia followed. In January 2001, Georgia governor Ray Barnes persuaded lawmakers to shrink the Confederate battle emblem prominently displayed on the state flag to a small box in the corner of the flag. The Confederate battle emblem had been added in 1956 while Georgia schools were segregated. Sonny Perdue defeated Barnes in an upset victory in 2002, due in no small part to the flag controversy. In April 2003, Perdue endorsed a new flag that employs the so-called "stars and bars," another historic Confederate banner. However, Civil Rights groups, including the NAACP and Rainbow/PUSH, heavily criticized Perdue's stance, demanding that the flag have no Confederate symbols. On April 25, 2003, Georgia's legislature approved a flag that looks similar to the Confederate battle emblem but does not have the Dixie cross or other Confederate symbols.

Other states have had mixed reactions to the flag controversy. Florida quietly removed its Confederate flag from the state capitol in 2001. Mississippi, however, the last bastion of the old South, has held its ground. In April 2001, by a two-thirds division along mostly racial lines, voters overwhelmingly rejected a bill to replace the state's "Southern Cross" on its flag, which dates back to 1894. Mississippi, the poorest state in the Union, showed little concern for any threatened boycotts.

The flag controversy revolves around the intended meaning of the flag. Clearly, if a state's flag represents "symbolic speech," there must be an intent to convey a particular message that is understood by those who view it, in order to invoke First Amendment consideration. Under these conditions, the time, place, and manner of display may be controlled if it can be proven that its display would cause violence or mayhem. According to the NAACP, the Confederate battle flag and emblem "have been embraced as the primary symbols for the numerous modern-day groups advocating white supremacy." The NAACP has referred to the flag as a "banner of secession and slavery." Some Southern whites see it as a banner of honor, however, for the Confederate soldiers who lost their lives during the U.S. Civil War. Furthermore, they interpret the war to have been more about state and federal power and states' rights to secede from a union that they had joined voluntarily and less as a war to end the institution of Slavery. Still further, others see the flag as a banner of "treason against the United States government."

The flag's significance on the state building seems to send two messages. Some have charged that it was more than coincidence that the South Carolina Confederate flag first flew over the state capitol in the early 1960s: it was raised in a centennial celebration of the Civil War. Others believe it was also meant to send a message to the grassroots Civil Rights Movement, which was just beginning to mobilize. In a country where historians continued to debate the reasons for the Civil War, the flag's message has been interpreted according to passing ideological or economic battles.

Issues regarding Southern heritage and the Confederate flag also were fought over in schools. In October 2000, the Supreme Court of the United States declined review of the Eleventh Circuit's decision in Denno v. School Board of Volusia County, Fla., 218 F. 3d 1267 (11th Cir. (Fla.), Jul 20, 2000) which upheld a school's right to discipline a student for displaying a small Confederate flag at school. The school had argued that the flag was such a controversial symbol that its display invited disruption. The Eleventh Circuit panel first issued an opinion allowing the student to proceed with his case against the school board then later withdrew its opinion and issued a dismissal.

Students in Kentucky, North Carolina, and Virginia also have been disciplined in the early 2000s for wearing Confederate symbols or flags on their clothing. Notwithstanding, in March 2001, the U.S. Court of Appeals for the Sixth Circuit remanded to the trial court a suit by two Kentucky students who were suspended for wearing Hank Williams Jr. shirts with the Confederate flag. (Castorina v. Madison County School Board, 246F. 3d 536 [6th Cir. (Ky.), Mar 08, 2001]). The appellate court stated that the school needed to explain its reason for the ban, such as whether any racial violence had occurred at the school.

Further readings

Bonner, Robert E. 2002. "Flag Culture and the Consolidation of Confederate Nationalism." Journal of Southern History 68 (May).

Magnuson, Carolyn. 2003. "South Carolina Man Had No Constitutional Right to Display Confederate Flag Decals at Work." Baltimore Daily Record (June 3).

Main, Carloa T. 2003. "The Civil War: The Confederate Flag Still Stirs Debate." The National Law Journal 25 (June 23).

Cross-references

States' Rights.

The turn of the century saw the beginnings of a movement to protect and honor the flag. In the early part of the twentieth century, schools commonly required students to salute the flag each morning. Some students refused to participate in the salute, mainly on religious grounds. By 1940, at least 200 public school students had been expelled in 16 states for refusing to salute the flag. Many of them were Jehovah's Witnesses, who maintained that any salute to the national flag constituted an act of idolatry and thus violated their religious beliefs. The expulsion of two Jehovah's Witnesses was challenged in Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375 (1940). In Gobitis, a father sued to enjoin the school district from prohibiting his children's attendance at school after they refused to salute the flag. The U.S. district court granted the Injunction allowing the children to return to school, and the U.S. Court of Appeals for the Third Circuit affirmed the district court. On appeal, the Supreme Court reversed the lower courts, holding that the school district's requirement that students salute the flag did not unconstitutionally infringe their religious freedoms. Writing for the 8–1 majority, Justice Felix Frankfurter said the salute requirement was constitutional as long as the students' "right to believe as they please, to win others to their way of belief, and their right to assemble in their chosen places of worship for the devotional ceremonies of their faith, are fully respected." A few years later, the Court reversed its position, in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), another challenge to mandatory flag salutes brought by members of Jehovah's Witnesses. In Barnette, the Court held that the school board could not require public school teachers and students to salute the flag. The Court said Freedom of the Press, of assembly, and of worship may be restricted "only to prevent grave and immediate danger to interests which the state may lawfully protect." In a companion case, Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87L. Ed. 1600 (1943), the Court overturned the convictions of two people found guilty under a state statute that forbade the dissemination of information advocating refusal to salute, honor, or respect the flag. The Court held that the statute infringed Freedom of Speech and freedom of the press. The Barnette and Taylor decisions signaled the Court's emerging support of the notion that freedom of speech extends to symbolic as well as oral and written speech.

Also during the early 1900s, numerous state laws were passed prohibiting the desecration of the flag or the use of the flag in advertising. Some of these laws were struck down by state courts, but in 1905, the U.S. Supreme Court upheld their validity when it affirmed a lower court that had refused to strike down a Nebraska statute prohibiting the use of the flag in advertising (Halter v. Nebraska, 205 U.S. 34, 27 S. Ct. 419, 51 L. Ed. 696 [1907]). The Court said the flag, as an emblem of national authority and an object of patriotic fervor, should not be associated with personal or commercial interests. It held that the Nebraska statute did not infringe personal property rights or individual freedom.

For 80 years, Halter was cited as precedent in cases upholding flag desecration statutes, and these laws stood solidly intact through most of the twentieth century. The laws were invoked frequently to prosecute demonstrators who burned flags to protest U.S. involvement in the Vietnam War. Between 1965 and the end of the war in 1973, as many as one thousand arrests were made under various state laws prohibiting the desecration of the flag.

The Supreme Court addressed the constitutionality of flag desecration laws again in texasv. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). During the 1984 Republican National Convention, in Dallas, the defendant, Gregory Lee Johnson and one hundred others staged a protest outside the convention hall. During the demonstration, Johnson burned a U.S. flag. He was later arrested for violating the Texas Venerated Objects Law (Tex. Penal Code Ann. § 42.09(a)(3) [Vernon 1974]), which outlawed intentionally or knowingly desecrating a flag in a way that some observer might find seriously offensive. Johnson was convicted, but his conviction was overturned by the Texas Court of Criminal Appeals (Johnson, 755 S.W.2d 92 [Tex. Crim. App. 1988]). The state appealed to the U.S. Supreme Court. In a 5–4 decision, the Court affirmed the court of criminal appeals, holding that Johnson's conduct was expressive communication, a form of speech that requires First Amendment protection. Addressing Texas's claim that it had a legitimate interest in preventing a breach of the peace, the Court observed that no disturbance of the peace occurred or was threatened by Johnson's burning of the flag. The Court also held that the venerated objects statute was subject to the strictest constitutional scrutiny because it restricted Johnson's freedom of expression based on the content of the message he sought to convey. The Court concluded, "We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."Many people were outraged by the Johnson decision. President george h. w. bush denounced flag burning and proposed a constitutional amendment to overturn Johnson. The Senate and the House of Representatives passed numerous resolutions calling for a constitutional amendment outlawing flag burning. When it became clear that a constitutional amendment was probably not feasible, Congress instead passed the Flag Protection Act of 1989 (Pub. L. No. 101-131, 103 Stat. 777 [amending 18 U.S.C.A. § 700]), which made it a criminal offense to mutilate, deface, or burn a flag; place a flag on the floor or ground; or walk on a flag. The act did not mention the motive of the actor or the effect on observers of the act. With these omissions, the statute was designed to be content neutral and to pass the most stringent constitutional scrutiny.

The Flag Protection Act was tested in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990). In Eichman, the defendants were arrested for burning a flag in a protest. They moved to dismiss the charges on the ground that the Flag Protection Act violated the First Amendment. The district court dismissed the charges, and the government appealed directly to the Supreme Court. Affirming the district court's findings, the Court reasserted its position that flag burning is expressive conduct protected by the First Amendment. The Court conceded that the federal act differed from the Texas statute in Johnson because it did not appear to regulate the content of the message conveyed by the prohibited acts. Nonetheless, the Court held that the government's interest in preserving the flag as a national symbol was implicated under the act only when a person's treatment of the flag communicated a message that opposed the government's ideals. In effect, the act did regulate the content of protected speech. The Court concluded that the government may not prohibit the expression of an idea, no matter how disagreeable or offensive that idea may be.

The Eichman decision prompted President Bush to renew his efforts to gain passage of a constitutional amendment banning flag desecration. The measure came to a vote in June 1990. By then, public and political interest in the issue had dissipated, and many members of Congress who had voted for the Flag Preservation Act were unwilling to support a change to the Constitution. The proposed amendment failed by a vote of 254–177 in the House of Representatives and 58–42 in the Senate.

During the mid-1990s and early 2000s, the House of Representatives continued to consider constitutional amendments that would allow Congress to enact legislation prohibiting the desecration of the flag. In 2003, the House passed a proposed amendment that reads, "The Congress shall have the power to prohibit the physical desecration of the flag of the United States." H.R.J. Res. 4 (108th Cong., 1st Sess.). According to one of the amendment's supporters, Representative Steve Chabot (R-OH), "If we allow [the flag's] defacement, we allow our country's gradual decline." The House approved the resolution by a vote of 300 to 125.

Although the amendment was still officially under consideration by the Senate in October 2003, similar measures in 1995, 1997, 1999, and 2001 failed to pass in the Senate. In order to be passed, the proposed amendment must receive a two-thirds majority in both the House and the Senate, plus approval from three-fourths of the states. In 1995 and 2001, similar measures received 63 votes, four shy of the required two thirds majority. Democrats opposed to the amendment have called the bi-annual legislation a "rite of spring" for House Republicans who support the measure.

Further readings

Associated Press. 2003. "House Approves Ban on Burning U.S. Flag." FOXNews.com. Available online at <www.foxnews.com/story/0,2933,88509,00.html> (accessed October 4, 2003).

Curtis, Michael Kent, ed. 1993. The Constitution and the Flag, Volume I: The Flag Salute Cases; and Volume II: The Flag Burning Cases. New York: Garland.

Dorsen, Norman. 2000. "Flag Desecration in Courts, Congress, and Country." Thomas M. Cooley Law Review 17 (September): 417–42.

Dyroff, David. 1991. "Legislative Attempts to Ban Flag Burning." Washington University Law Quarterly 69 (fall).

Goldstein, Robert Justin. 2000. Flag Burning and Free Speech: The Case of Texas v. Johnson. Lawrence: Univ. Press of Kansas.

——. 1995. Saving "Old Glory." Boulder, Colo.: Westview Press.

Padover, Saul. 1995. The Living U.S. Constitution. New York: Meridian.

Ward, Kenneth D. 1998. "Free Speech and the Development of Liberal Virtues: An Examination of the Controversies Involving Flag-Burning and Hate Speech." University of Miami Law Review 52 (April): 733–92.

Cross-references

Censorship; Religion.