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Justice Stevens shares changed thinking about flag desecration

By Tony Mauro
First Amendment Center legal correspondent
11.28.06

WASHINGTON — Supreme Court Justice John Paul Stevens, who voted to uphold laws that banned flag-burning in rulings in 1989 and 1990, now opposes a constitutional amendment that would accomplish the same thing.

In little-noticed remarks before the Chicago Bar Association in September, Stevens, 86, said that “after thinking a good deal about the issue,” he now believes passage of a constitutional amendment to protect the flag from desecration would be “unwise” and unnecessary.

Whereas in 1989 Stevens said that allowing the American flag to be burned would “tarnish its value,” he told the Chicago group, “Today, one could not burn a flag without reminding every observer that we cherish our freedom.” C-SPAN aired the Stevens speech on its “America and the Courts” show Nov. 25.

Stevens’ statement, while not exactly a confession of error, was a remarkable expression of how his thinking has evolved on a recurring hot-button issue.

In the 1989 ruling Texas v. Johnson, a 5-4 majority of the Court found that a Texas law barring desecration of the American flag violated the First Amendment by singling out one point of view for punishment. But Stevens, a World War II veteran, sharply disagreed, reading his dissent from the bench. “The value of the flag as a symbol cannot be measured,” he said at the time. “Sanctioning the public desecration of the flag will tarnish its value — both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it.”

When Congress responded to the decision by passing a federal law that banned desecration of the flag, the Court struck it down as well in its 1990 ruling United States v. Eichman, and again Stevens penned a dissent.

In his Chicago talk, Stevens said, “I must confess, I am rather proud of what I had to say” in the dissents.

But now, he says that ironically, the decisions from which he dissented have succeeded in making the problem go away.

“Nobody burns flags anymore,” Stevens said. “What once was a courageous act of defiant expression is now perfectly lawful and therefore is not worth any special effort.”

In addition, Stevens said that now that the rulings have become the “the law of the land” and taken root, “burning the flag is now a symbolic act that conveys a far different message than it once did. If one were to burn a flag today, the act would convey a message of freedom that ours is a society that is strong enough to tolerate such acts by those whom we despise.”

The latest attempt to pass a constitutional amendment that would authorize Congress to prohibit the “physical desecration” of the flag failed in June when the Senate fell one vote short of the two-thirds majority needed.

Stevens is not the only justice to experience a change of heart about a past decision. In recent months, Justice Sandra Day O’Connor has expressed second thoughts about her vote in another First Amendment case, Republican Party of Minnesota v. White, decided in 2002. She was in the majority in the 5-4 decision that said states may not prohibit judicial candidates from announcing their views on legal or political issues. The ruling has contributed to an increase in the politicization of judicial races, which O’Connor views with concern.

In 1990, the late Justice Lewis Powell said in a speech that he had “probably made a mistake” four years earlier by voting with the 5-4 majority in Bowers v. Hardwick, upholding Georgia’s anti-sodomy law. If he had joined the dissenters instead, the law would have been struck down.

When the late Justice Robert Jackson in 1950 voted against a position he had taken years before as attorney general, he explained himself by invoking the classic statement of Baron Bramwell, a 19th century British judge: “The matter does not appear to me now as it appears to have appeared to me then.”


Related

Opposition to flag-burning amendment unites Senate leaders

Republican Mitch McConnell, Democrat Dick Durbin — each their party's second-ranking senator — say protecting free speech takes precedence. 06.26.06

Patriotism, dissent and the American flag
By Melanie Bengtson In first of six lectures on First Amendment values, First Amendment Center founder analyzes history of flag, practice of burning it in protest. PODCAST VIDEO 10.13.06

Burning the Bill of Rights to save the flag
By Paul K. McMasters It's a uniquely American right to speak through our flag, and uniquely un-American to try to ban or punish symbolic political speech — as the Senate looks poised to do. 09.10.04

Flag-burning horizon


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