Flag Burning and Free Speech: The Case of Texas v. Johnson
Flag Burning and Free Speech: The Case of Texas v. Johnson by Robert Justin Goldstein, published by University Press of Kansas
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The tattered remnants of the Fort Sumter flag became a major fund-raising device in the North: one hundred thousand people gathered on April 20 in New York City to view it, and the flag was subsequently transported from city to city and repeatedly "auctioned" at large rallies held for war relief. Throughout the Civil War, elaborate flag raising and flag presentation ceremonies (often involving flags specially sewn for military units by seamstress volunteers) were held before large crowds. At one ceremony, held in northwestern Pennsylvania in June 1861, Captain Asa Cory, leader of the volunteers, pledged to protect the flag, declaring, "Our Southern States have discarded this National emblem and insulted and vilified it; yet we trust it will ere long float again over a united Union." At another rally in Kalamazoo, Michigan, soldiers were presented with a flag containing the motto "Do Your Duty" stitched into the field of stars.
As the conflict raged, flag poetry, songs, and stories became increasingly popular. Thus, the popular northern anthem, "The Battle Cry of Freedom," included the line, "we'll rally round the flag, boys," while James Field's song "The Stars and Stripes" maintained, with regard to the new Confederate flag, that "Their flag is but a rag—Ours is the true one/Up with the Stars and Stripes—Down with new one!" Northern soldiers sometimes died seeking to keep the flag flying during battle and/or were awarded medals for protecting it from capture. Before the Confederate army captured one Union regiment, Union soldiers tore up their flag, burned parts of it, and divided the rest among themselves to keep it from rebel hands. Other flags had the locations of the battles they had survived stitched into their bunting.
In a number of instances in the North, the locations of businesses and individuals that failed to fly flags or were viewed as insufficiently patriotic were subjected to mob assaults, sometimes leading to hasty efforts by targets to obtain flags to display. In the South, the federal government threatened and took more formal action to suppress flag disloyalty. On January 29, 1861, more than two months before the war began, after word reached Washington that Louisiana officials were threatening to confiscate a federal revenue ship, President James Buchanan's treasury secretary, John Dix, telegraphed to a clerk in New Orleans, "If anyone attempts to haul down the American flag, shoot him on the spot." With the war's outbreak, scattered incidents of deliberate physical damage to the flag were reported from the South, including apparently the first protest flag burning in American history, at Liberty, Mississippi, on May 10, 1861. The most startling instance of official punishment for flag mistreatment occurred in New Orleans, where William Mumford was hung for treason on June 7, 1862, after a military court found him guilty of pulling down, dragging in the mud, and tearing to shreds an American flag that had been hoisted over the New Orleans mint amid the federal reoccupation of the city. Confederate president Jefferson Davis subsequently labeled Mumford's execution an "outraged" and "deliberate murder."
The Rise of the Flag Protection Movement
The flag's popular new status remained firmly entrenched in the North after the war's end, as was made clear by the flag displays and ceremonies connected with numerous historical commemorations, such as those celebrating the 1876 revolutionary centennial and the 1892 Chicago Columbian Exposition. But for citizens' daily lives, the flag's heightened popularity was most evident in its increasing appropriation for commercial purposes, as modern forms of advertising developed amid the nation's postwar economic expansion. Among the products and services that used flag symbolism to market themselves, according to various publications issued by "flag protection" groups which sprang up by 1900 to protest that such advertising usage degraded and "desecrated" the flag, were breweries, burlesque shows, doormats, pool rooms, chewing gum, whiskey barrels, patent medicines, trolley tickets, toilet paper, the costumes of prizefighters, and Uncle Sam, and paper used to wrap fruit, cheese, cigars, and ham. Politicians also continued the pre-Civil War practice of printing their slogans (and sometimes their portraits) on the flag, a practice many veterans imitated by printing the names of their regiments and the battles in which they had fought across the flag's stripes.
In 1878, Representative Samuel Cox introduced the first congressional bill targeting such practices: it sought fines and imprisonment for anyone who "shall disfigure the national flag, either by printing on said flag, or attaching to the same, or otherwise, any advertisement for public display." A similar bill was passed by the House of Representatives in 1890 after a House Judiciary Committee report, "To Prevent Desecration of the United States Flag" (perhaps the first official use of "desecration" with regard to the flag), declared that the flag should "be held a thing sacred" and that to "deface, disfigure, or prostitute it to the purposes of advertising" was "a crime against the nation."
What will henceforth be termed the "flag protection movement," or FPM, blossomed after about 1890, spurred by Union veterans' organizations—especially the Grand Army of the Republic (GAR), which, of course, exempted "battle flags" from their attacks—and above all by patriotic-hereditary organizations such as the Sons of the American Revolution (SAR) and the Daughters of the American Revolution (DAR), which sprang up in large numbers after 1885. By 1898, organizations demanding that "flag desecration" be outlawed were so numerous that they agreed to coordinate their efforts by forming the American Flag Association (AFA).
The FPM vehemently denounced commercialization of the flag and other unorthodox uses of it as a prostitution of the emblem and maintained that such uses of flag imagery degraded its significance. Thus, when administrators of the California hall at the Chicago Columbian Exposition used a forty-foot flag to carpet a stairway during an 1893 reception, the DAR indignantly protested that the flag was being turned into a "footmat." The authors of an 1895 FPM pamphlet claimed that "The tender sentiment associated with . . . decent use of the national emblem is sadly marred when we see it shamefully misused as an apron on labor day parades, and as a costume to bedeck stilt walkers, circus clowns, prize fighters and variety players or gaiety girls." In a 1902 pamphlet, leading FPM spokesman Charles Kingsbury Miller (who, ironically, had made his fortune in the advertising industry) denounced the "clutch of sordid tradesman" who had turned the flag into "an article of commerce" by using it as a "medium of deception and fraud to proclaim their defective merchandise, flimsy wares, and adulterated goods." Such "unscrupulous" businessmen, Miller proclaimed, had "polluted" the flag, whose "sacred folds were never designed to be defaced with advertisements of beer, sauerkraut candy, itch ointment, pile remedies and patent nostrums, to serve as awnings, horse blankets, merchandise wrappers, pillow and footstool covers or as miniature pocket handkerchiefs, on which to blow noses, or with which to wipe perspiring brows." DAR Flag Committee chairwoman Frances Saunders Kempster similarly bitterly complained that the flag had been "contaminated by the greed of gain until it has been dragged down to the vilest associations" by those who had turned it into a transformer of "patriots' blood into traders' gold."
Although the original impetus to form the FPM was commercial use of the flag, its ire was also raised by incidents that resulted in damage to flags during their widespread use for partisan purposes. In 1896, such uses reached new heights when Republican candidate William McKinley's campaign distributed millions of flags and flag buttons as signs of support for him, even declaring October 31, 1896, as a national flag day in McKinley's honor, which was highlighted by a New York City parade of over one hundred thousand people featuring masses of flags. In perhaps a dozen or so incidents, supporters of Democratic candidate William Jennings Bryan reportedly vented their anger at slurs upon their loyalty made by McKinley's backers by tearing down or otherwise assaulting "McKinleyite" flags, even allegedly burning one such flag in Sedalia, Missouri.
Reacting to reports of these and similar incidents during the 1896 campaign and thereafter, in 1898 SAR Flag Committee chairman Ralph Prime (who also served as AFA president) denounced both those who used the flag for "selfish and unpatriotic" commercial advertising and those whose "partisan, political and unpatriotic sentiment" used the emblem for promoting political candidates. Similarly, FPM spokesman Miller wrote that the flag's "sacredness" had been equally abused by "avaricious tradesmen and crafty politicians." Ironically, perhaps, one of the clearest examples of such commercial use of the flag was its increasingly frequent appearance in Broadway musicals, including George M. Cohan's 1906 George Washington, Jr., which featured the song known today as "You're a Grand Old Flag"—it had originally been called "You're a Grand Old Rag" but Cohan changed it after a theater critic complained that the original title constituted flag desecration. Cohan made use of patriotic symbolism so frequently and effectively during his shows that he once commented, "Many a bum show is saved by the American flag."
Although the original targets of the FPM—advertisers, political parties, and showmen like Cohan—were clearly mainstream elements in American society, new, far less mainstream targets soon emerged. These new targets consisted of perceived "un-Americans," such as so-called "new immigrants" from southern and eastern Europe (who by 1890 began far outnumbering those originating from the traditional northern and western European homelands of American immigrants), political radicals, and trade unionists. Gradually after 1900, and especially after the twin 1917 developments of American intervention in World War I and the Bolshevik revolution, the FPM began to focus almost exclusively on the alleged use of flags to express political protest by such forces, who were often indiscriminately lumped together as perceived threats. . . .
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