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Desecrating the Flag: The flag amendment, free speech and provocation using stars and bars

by Robyn Coffey
images courtesy of the artists: Dread Scott, "What is the proper way to display a US Flag" (left) and Wafaa Bilal, Total War (right)

Throughout the history of cultural controversy, artists have taken it upon themselves to stretch the limits of acceptable expression. Ranging from Artemisia Gentileschi to Théodore Géricault to Hans Haacke, their work has sparked fierce debate and often inspired positive change by exposing offenses against human rights. In contemporary America, citizens frequently use the nation’s flag as a symbol in political dissent. But now, Congress is attempting to pass legislation that would threaten their right to freedom of speech.

Under current law, burning, stepping on, drawing on, or representing the flag in artwork in an unflattering manner, are considered acts of political expression which are federally protected by the First Amendment, according to the 1989 Supreme Court ruling Texas v. Johnson. That ruling remains an extremely important case for the right to freedom of speech in this nation. But our government administration is attempting (for the fifth time since 1995) to amend the Constitution of the United States to limit that right.

Freedom of speech: a right or a privilege?

The Flag Protection Amendment (Senate Joint Resolution 12) proposes an addition to the Constitution that would grant Congress the power to prohibit physical desecration of the flag of the United States of America. This is basically refined wording to outlaw expressive behaviors such as burning a draft card or a president in effigy, as opposed to garden-variety trash-talking. Apparently, the wording of the First Amendment isn’t clear enough: “Congress shall make no law ... abridging the freedom of speech.”

The most recent proposition passed the Republican-controlled House as usual last June, and the Republican-controlled Senate has until the end of this year to make its decision. Senator Orrin Hatch (R-Utah), who is co-sponsoring the bill, told USA Today just before the proposal passed the House, “It’s important that we venerate the national symbol of our country. Burning, urinating, defecating on the flag this is not speech. This is offensive conduct.”

Supreme Court Justice John Paul Stevens described in 1989 the importance of the need to protect that national symbol. “It is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power,” he wrote. “It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will.”

It may be only a few red and white lines and a bunch of little stars, but it represents the whole battle our young, headstrong nation fought to get to the top. It’s an enduring symbol of “our shared values, of our allegiance to justice, and of those who have sacrificed to defend those principles,” according to the website of the amendment s other sponsor, Dianne Feinstein (D-California). (Neither Feinstein nor Hatch responded to requests for an interview.)

A resolution proposed by the Veterans of Foreign Wars (VFW) in 2005 points out, “The flag of our nation is being desecrated in every form and the laws of the land are not protecting it.”

“The bottom line on the flag amendment,” says Joe Davis, director of VFW s public affairs department, “is that one million American service members have died fighting for the ideals and freedoms that the U.S. flag represents. If it’s a symbol that s worth saving, it’s a symbol that s worth protecting.”

The Citizens Flag Alliance, which supports the amendment, used religious-based research firm Wirthlin Worldwide to conduct a national telephone poll of 8,500 people. The poll, cited on many pro-amendment websites, showed that 73 percent of voters believe that a constitutional amendment to protect the flag from desecration would not infringe on their rights to freedom of speech, and 81 percent would vote for it. The survey showed that only 15 percent of voters felt that flag-burning was an appropriate expression of that right. (It also showed that a mere 13 percent of those polled graduated from college, and 78 percent of those polled were white).

However, a similar telephone survey of 1,003 people, conducted by the New England Survey Research Associates in May 2005 for the First Amendment Center, showed that 63 percent of the public is against the amendment, a percentage that has been rising since the annual survey began in 1997.

Senator Hillary Clinton (D-New York) attempted to find a happy medium between laws banning desecration and an actual constitutional amendment, but she was fiercely criticized for her wishy-washy stand. Critics say Clinton is pandering to public opinion for the sake of her bid for President. She told the New Republic in July of last year, “I support federal legislation that would outlaw flag desecration, much like laws that currently prohibit the burning of crosses, but I don t believe a constitutional amendment is the answer. Those few who would destroy a flag are not worthy of the response of amending our founding document.”

Many politicians and citizens believe an amendment is the only sure-fire way to protect the American national symbol. The CFA’s website ( explains, “The flag remains a single unifying embodiment of our unceasing struggle for liberty, equality, and a basic commitment to others for all citizens, regardless of language, culture and heritage. To protect the laws and freedoms that are based on this unity, we must protect the flag upon which this unity is grounded.”

As Justice Stevens wrote in Texas v. Johnson, “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 roles of martyrdom by burning it ... If ideas [of liberty and equality] are worth fighting for—and history demonstrates that they are —it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.”

“If we allow its defacement, we allow our country’s gradual decline,” added Representative Steve Chabot (R-Ohio) on CBS in June 2003.

Patriotism or idolatry?

The first nationwide statute prohibiting flag desecration was a Federal Flag Protection Act passed in 1968 to crack down on a rash of burnings in response to the Vietnam War. Millions of demonstrators across the country set fire to American flags to protest the three million victims of the war, racism and sexism, and the fact the government’s behavior was simply not supported by its citizens. But it wasn’t until the Act of 1968 was overturned in the landmark Texas v. Johnson case in 1989 that the Court directly addressed the constitutionality of flag desecration.

In 1984, 27-year-old Gregory Joey Johnson traveled from Georgia to Texas, to protest President Reagan’s foreign policy at the Republican National Convention in Dallas. “They had these flags all over the place like a Nuremburg rally,” he recently told F Newsmagazine. Johnson and several others set fire to a kerosene-soaked flag on the steps of the Capitol Building while demonstrators cheered. (Incidentally, Mayor Daley’s office recently declined an offer for Chicago to submit a bid to host the 2008 Republican Convention.)

Johnson describes how he spent a night in a Texas jail cell with physically abusive White Supremacists, and after his bond was posted by locals, eventually returned to Dallas for trial, the only one arrested at the convention to do so. He was convicted by the state of desecration of a venerated object and sentenced to a year in jail and a $2,000 fine.

“[The flag] is a symbol of oppression, international plunder, and murder, the whole global system of exploitation, sweatshopping the planet, and wars of aggression,” he says. “The amendment is the government attempting to suppress anti-patriotic activities. There’s no disputing people will be political prisoners for burning the flag. [It’s] not a criminal [act]. If they’re saying they have the right to suppress you because burning the flag harms national unity, well, speaking out against the president harms national unity, too.”

He set fire to the flag because “it was a way to really puncture that intense, chauvinistic American atmosphere.” He cites the death sentence passed down to award-winning author Salman Rushdie by Iraq’s Ayatollah Khomeini, due to alleged blasphemy against Islam in Rushdie’s 1989 book The Satanic Verses. Only Johnson was blaspheming against the flag.

It’s odd how often the flag becomes associated with Christian values (and, for that matter, Nazism). It s a fundamentally secular object that represents a fundamentally secular state, but people still call flag-burning desecration, a word meaning an attack on something sacred, like spray-painting obscenities across a church, or creating insulting images of the Prophet Mohammed. Our government has consistently called upon religious institutions for moral authority, in issues from abolition to gay marriage. The Flag Protection Amendment appeals to those who believe the flag represents freedom and democracy, as well as the three-quarters of the American population who identify themselves as Christian, who are, as Johnson puts it, “indoctrinated from kindergarten to boot camp.”

Then we have a Commander-in-Chief who gets a Protestant Evangelist minister to dedicate his presidential inauguration to Jesus. (Bush reportedly told Palestinian Prime Minister Mahmoud Abbas in June 2003, “God told me to strike at Al Qaeda and I struck them, and then he instructed me to strike at Saddam, which I did, and now I am determined to solve the problem in the Middle East.” Apparently God didn’t tell George W. how.) Bush received flak for signing his autograph on flags at a Republican rally in Michigan in 2003, according to the Washington Post, an act that most definitely counts as “physical desecration.”

Johnson appealed the conviction, and the case eventually worked its way up to the highest court in the nation. It was the first time the Supreme Court had taken on a flag-burning case addressing First Amendment rights. Included in the testimony presented to the Court were amicus briefs, or “friend-of-the-court” documents designed to bring to light additional information and support not directly related to the case. The briefs were signed by dozens of civil rights organizations and concerned individuals, including artists Jasper Johns, Robert Rauschenburg, Leon Golub, Richard Serra, Faith Ringgold, and Christo. They stated in the document, “Artists do not usually communicate through words, but reach their audiences through the use of symbols and recognized images. Elimination of any particular tool of the trade ... necessarily limits the visual vocabulary and stifles the creative process.”

On June 21, 1989, the Supreme Court ruled 5-4 in Johnson’s favor. “If there is a bedrock principle underlying the First Amendment,” wrote Justice William Brennan, “it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
But within four months of the Supreme Court decision, both houses of Congress had reacted by passing a new Flag Protection Act. It states specifically, “Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.” At midnight on the day it went into effect, people across the country burned flags in protest, and two days later, three people were charged with desecration for setting fire to flags on the steps of the U.S. Capitol.

The charges against the three were eventually dropped after a year, following many more demonstrations and legal wrangling, when the Supreme Court again ruled the Flag Protection Act was unconstitutional in United States v. Eichman. One of the defendants was a college student named Dread Scott.

Desecration, also known as dissent

Scott had first gained national notoriety in 1988, at age 23, when he created an installation at a gallery operated by the SAIC, as part of a group show for minority artists. The installation included a small photomontage on the wall with the headline “What is the proper way to display a US Flag?” It consisted of black and white photographs of South Korean students burning flags and holding “Yankee go home son of bitch” signs, and rows of flag-draped coffins. Below the montage a shelf contained writing implements and a blank book, to encourage audience participation and response, Scott told F Newsmagazine. The only problem was, to get to the book, you had to step on Old Glory, laid out in all her splendor right on the floor.

Here’s a typical response written in the book, from Scott’s website
( “Right now a lady is on the ground crying because of what you have done. I feel you did something wrong and I feel you should be put in jail or have something done to you for this. I love my country and it hurts me to know that you don’t. I hope you feel good about yourself for what you are putting people through. You’re an asshole.”

“The work responded to particular ideas that were part of the discourse of the moment, including Bush running for election on a renewed and reinvigorated patriotism,” describes Scott. “My work wasn’t an accident. But the fact that it became controversial the way that it did was a bit of an accident,” occurring as it did in conjunction with the Texas v. Johnson ruling and the contradictory new Flag Protection Act of 1989.

“The right wing was making patriotism compulsory and trying to prescribe only one use for the flag,” he explains. “One of the contributions artists make to society is engaging in intellectual inquiry and in critical thought and discourse. There is this illusion of freedom of expression that is promoted in this society. But you cross a line and they will try to suppress you. The forces that were attempting to ban criticism of the flag wanted this work suppressed, and it turned into a bigger fight than they expected.”

SAIC Dean Carol Becker wrote in Art Journal in 1991, “There was no end to the absurdity and violence mobilized in reaction to this piece. There, at the School of the Art Institute of Chicago, was a symbol of true violence to the American way of life.”

President George H. W. Bush publicly denounced it, calling it disgraceful, and Senator Bob Dole issued a statement saying Scott had cast contempt on the flag and invoking the new Flag Protection Act. “The current law covers people who view the display and walk on the flag,” wrote Dole, “but not the so-called artist who invited trampling on the flag.”

Scott’s infamous installation has remained controversial each time he shows it. When it was displayed in New York City, the director of the gallery received death threats and tires on the block were slashed. When it was shown in 2004 at the Phoenix Art Museum, curator David Rubin was chased indoors by an angry mob.

Faith Ringgold, a well-known New York artist who signed Johnson’s amicus brief, is renowned for her paintings and her story quilts, which combine text, paint, and appliquéd fabric to make poignant statements about contemporary race relations. They are part of the permanent collections of the Metropolitan, the Guggenheim, and the Museum of Modern Art. Some of Ringgold’s work could technically be described as physical desecration, as she frequently employs images of the flag.

“It would be impossible for me to picture the American flag just as a flag, as if that is the whole story,” she told F Newsmagazine. “I need to communicate my relationship with this flag based on my experience as a black woman in America.” One of Ringgold’s most strikingly symbolic works is “Flag for the Moon: Die Nigger” (1969). At first glance, the painting appears to be a normal American flag, but upon closer examination, the viewer makes out the word “die” superimposed behind the stars, and realizes the stripes consist of the word “nigger” spelled sideways. The piece is part of her Black Light series, in which she experimented with a darker color palette. The flag in “Flag for the Moon” contains no white at all.

Big Brother meets the Patriot Act

In the art world, such insubordination is often considered a valid and necessary form of political dissent. Public or legislative opinion is rarely swayed by anything less than scandal. As the Supreme Court wrote in 1989, “The First Amendment may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” “It would be a sad day for the free world, at this time of war in the Middle East, if America should caste a blind eye on freedom of speech,” says Ringgold.

Wafaa Bilal, an instructor in the photography department at SAIC, spent two years in a refugee camp in Iraq before escaping to the United States in 1992, and has witnessed first-hand the so-called liberty of that country. “From an Iraqi point of view, the American flag cannot and will not stand for freedom or democracy,” he says. “It only stands for imperialism. “When I lived in Iraq,” Bilal continues, “I had experienced first-hand the destruction inflicted on the people of that country by the United States. For many years, the U.S. supported the regime of Saddam Hussein during the war with Iran. One million people lost their lives during that war. In 1991, Saddam was invited by the U.S. to invade Kuwait. And we all know the result of that invasion. While Americans are enjoying their freedom under the flag, the rest of the world has to suffer because of their government’s foreign policy.”

Bilal’s 1999 installation at the University of New Mexico was vandalized by a protester who felt offended by the graphic, war-themed, anti-American imagery. The installation included a piece called “Total War,” a cross-shaped reliquary with a small wooden dildo figure wrapped in a U.S. flag, against a background of pages from the Bible and photographs of Iraqi war victims. Nearby was “Sorrow of Baghdad,” a life-size figure with a boar’s head and Western-style business suit sitting on a pile of American currency. Every time the sound of a baby crying issued from an adjacent crib, the figure was programmed to respond with laughter. A vandal entered the gallery-turned-mosque and attempted to yank the little crucified doll from the wall. Bilal declined to press charges, explaining the vandal had exactly proved the point the artist was making.

In April 2005, the Secret Service showed up at Columbia College to investigate Chicago artist Al Brandtner’s stamp art piece “Patriot Act,” included in an exhibition at the Glass Curtain Gallery called Axis of Evil: The Secret History of Sin. Brandtner’s piece consisted of a page of mock postage stamps with an American flag background and a picture of George W. Bush with gun pointed at his head. Curator Michael Hernandez de Luna told the Associated Press at the time, “It starts questioning ... the rights of any artist who creates—any writer, any visual artist, any performance artist. It feels like we’re being watched.”

The fact of the matter is this: The United States of America was founded on the principle that its citizens are free—free to practice their religions, free to gather with whomever they want, and free to speak their minds. This was established in the very first amendment of the Bill of Rights and led to our reputation as the land of the free and the home of the brave. But it’s also true that we’ve made a lot of mistakes and done some embarrassing and shameful things.

“To some people, it’s the flag carried by the cavalry that enacted genocide on Native Americans, that dropped bombs on Hiroshima and Nagasaki, and napalm on Vietnam,” says Scott. “It’s the flag worn by cops who shoot people in the back. It’s the flag of a country pillaging the world.”
“It’s a fascistic amendment,” he continues, “and I think it’s a dangerous sign of the times that they keep trying to pass it. We’re in a moment similar to when Hitler had been elected Chancellor, but the ovens hadn’t been built yet."

MARCH 2006