September 17, 2009


NOTE: This is a long post, but the message is important. I hope you will read to the end.

Freedom of Expression: Can I flip off the cops?

Certainly you can, and in many cases you’ll get away with it.

Is it wise to offer a middle finger salute to a cop?


What about burning a U.S. flag as a means of protest?

Again… might be legal – might be protected – but maybe not always a wise idea.

Both questions have constitutional overtones, and a good bit of precedent. Even repugnant speech, action or gesture may be protected by first amendment guarantees. Let's take a look at some historic cases.

The eye of the beholder

Probably the most dramatic result of flipping the bird at the wrong people, in the wrong place and at the wrong time happened May 4, 1970. Some who were there suggested that the use of such gestures was one of the possible triggers for the still shocking massacre at Ohio’s Kent State University. Four young lives were snuffed out on a public college campus at the hand of the state, for the crime of protesting the war in Viet Nam.

To paraphrase FDR, the day will live in infamy.

Kent State is, to be certain, an extreme example, but there have been hundreds of similar though less dramatic events incited by the unwise use of the middle finger. In most cases, the action has been ruled to be protected under 1A.

In 1987 the Brennan court struck down a Houston, TX obscenity ordinance in City of Houston v. Hill on the basis that the ordinance was overbroad. In this and many subsequent cases, the writers of law failed to fully define words such as “gesture.”

Also in 1987, a Logan City, AZ police officer responded to such a gesture by arresting Ralph Duran and tossing him in the pokey. Duran V. Logan City made it to the 9th circuit before it was overturned. Judge Alex Kozinski still calls this “the finger case.”

Writing for the three judge panel, Kozinski remarked, “while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.”

Much more recently, 1A failed to help Thomas Dube, who had flipped off a game warden andwas issued a citation under a state law that reads in part, “A person is guilty of disorderly conduct if he knowingly accosts, insults, taunts or challenges any person with offensive, derisive … gestures or other physical conduct, that would in fact have a direct tendency to cause a violent response by an ordinary person in the situation of the person … insulted, taunted or challenged.

Dube was never tried, but sued the warden claiming denial of 1A rights, and on Jan. 13 of this year, in Dube v. Boyer, U.S. Magistrate Margaret J. Kravchuk determined that, due to his overall behavior, Dube’s constitutional claims lacked merit. This case proves that 1A is not a blanket defense, and that the middle finger salute is not always a good idea.

Flag desecration

The first laws banning flag desecration started appearing late in the 19th century, but not in response to any sort of protest. What was perceived to be commercial and political misuse was, it seems, disturbing certain individuals.

Political parties of the time were printing ballots with little flags next to the names of candidates of their choice. The flag desecration bill sponsors couldn’t get Congress to act, so they started passing state laws. By 1932 every state had a flag desecration law.

Although it wasn’t tried as a 1A case, two Nebraska businessmen were the first to be charged and convicted of flag desecration, when in 1907 that state tried them on charges of using the representation of the Stars and Stripes on beer cans.

First Amendment guarantees

It was in a flag case before SCOTUS that we first heard the words, “freedom of expression.” In West Virginia Board of Education v. Barnette, ruling that children could not be compelled to salute the flag, Justice Robert Jackson wrote, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

1968 saw the first documented flag burned as a form of protest, and just like Kent State, it was related to Viet Nam. Congress responded with the first federal flag desecration statute.

The first prosecution under a flag burning statute came a year later in New York. The case also resulted in the first overturning of such laws. In the 1969 Street v. New York, Justice John Marshall Harlan observed "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."

The next several years would see a few other similar cases, all with similar outcomes. In the 1972 Smith v. Goguen, Massachusetts was overturned for convicting a protestor for wearing a flag on the seat of his pants. In the 1974 Spence v. Washington, another protester overlaid a flag with a peace sign.

In Spence, for the first time, the Court clearly stated that protest involving the physical use (desecration) of the flag could be a form of protected expression.

The Republican National Convention, Dallas, TX, August 20 – 24, 1984

Ronald Reagan was not popular with the radical left. The convention nominated him for a second term, and the natives weren’t happy.

On Wednesday of that week, Gregory Lee “Joey” Johnson, a member of the Revolutionary Communist Youth Brigade, set fire to a U.S. flag as a group of protesters chanted encouragement. Dallas police arrested Johnson and hauled him away rather unceremoniously. The right-wingers were enraged and a noisy stink was raised all the way to the jail, which was just across Main Street from where the ashes of the flag still smoldered.

The story is still available in the archives of the Dallas Morning News, and in multiple repositories around the sphere. Johnson’s conviction was overturned in 1989. As it should have, SCOTUS determined that Johnson’s act was a form of symbolic speech, subject to protection under 1A.

That was the big story as far as the media and the public were concerned, but there was another, much more interesting story that went almost unnoticed.

Standing in the crowd that hot, August day was a 57-year-old veteran of World War II and the Korean conflict; a 1953 West Point graduate.

Dan Walker would have celebrated his 82nd birthday Saturday, but he died Wednesday. Dan is the reason for this story.


The intent of the framers of our constitution should be honored, even if it offends the majority. This is the job of SCOTUS… to ensure the citizens of this country never lose the protections crafted and so carefully documented in that most sacred document.

However repugnant, I must agree that the burning of a flag in protest must fall under the protections offered by 1A.

… but that doesn’t mean I have to like it. Apparently, Dan didn't like it either.

After Johnson was hauled off, and the shouting crowds trailed away, Dan quietly walked over to the still smoldering ashes of the burned flag. Some who watched have said he saluted, but he wasn’t in uniform so I kind of doubt that, and it doesn’t matter anyway. It was what he did next that mattered.

Dan got down on his knees and carefully scraped the ashes of the burned flag into a pile, then took that which once was the symbol of our free nation to his home, and according to proper flag etiquette, Dan buried Old Glory in his yard.

Dan’s quiet act of patriotism didn’t go completely unnoticed. It took a while, but he was identified, found and honored. The Army presented Dan with their highest civilian honor, the Distinguished Civilian Service Medal. In a later interview with his hometown Fort Worth Star Telegram, Dan demurred at the suggestion he had done something special, saying “I didn’t want someone sweeping it up with a broom and putting it in an ashcan.”

Greg Johnson and his merry band of way too far lefties got most of the press that day, and our constitution protected him for his act of protest. I sometimes wonder if Johnson regrets his actions, or if he ever feels grateful for our constitution… the same constitution that kept him out of prison… the same constitution Dan Walker served to protect.

These days a lot of folks want to pound their chests and shout slogans... carry signs with stupid slogans and spout ignorant accusations... call themselves patriots. Johnson probably thought his was a patriotic act that day too... and in a way it was. 

Now mind you... I'm a liberal and always have been. I will take the stand right now and defend Johnson for his deed that day in Dallas. Defending and respect are two different thing though, and one that neither Johnson nor the Republicans that nominated Saint Ronnie for a second term did not understand. That flag is a simple scrap of cloth that represents a nation... our constitution is our supreme law, and it represents our people... as individuals.  

Still, Dan Walker is a lesson for them all... both sides of this argument... if they would only pay attention.


BCFD36 said...

How do you feel about Rick Monday's actions on April 25, 1976 when he took a flag away from two protesters who was going to burn a flag in center field at Dodger Field?

I have mixed feelings. On one hand they have the legal right to burn the flag if they want to (but not in the middle of Dodger Stadium during a game.) On the other hand, I would consider it the highest insult to all those who died representing the flag.

Some things are wrong even if they are right.

D. Scruggs

Mule Breath said...

You are very correct that things can be both right and wrong at the same time. In my mind the burning of Old Glory is inappropriate under any circumstance not related to proper retirement of the standard. But regardless of how repugnant I find the act... my opinion must never sway law.

Because his were the actions of an individual and not the state, Monday had my support. The fools were in his house and they should play by his rules. If I were there and in a position to do the same, I might have. I might have tried to stop Greg Johnson that day in Dallas, even though as an opponent of our Viet Nam involvement, I was somewhat on his side.

Some statements go beyond the acceptable and tend to destroy the possibility of reasonable dialogue. That applies to much of the speech and many of the signs displayed on 9/12 in D.C. as well as it apples to flag burning.

As Justice Jackson observed and I quoted above, The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles...

I'll have another post on free expression coming soon. I was working on it when Dan died.