What is your opinion on the use of the American Flag in art/photography being protected by the 1st Amendment?

SPC James Seigars — Tue, 30 Oct 2018 02:11:56 -0400

We are studying First Amendment protection for photographers & were just told of a case where a student in Chicago had the U.S. Flag on the ground and a notebook above it along with a photo of different versions of the flag in a frame above the notebook (see photo). You had to walk/step/stand on the flag to write in the notebook. He was sued by Chicago councilmen who said he was violating a city ordinance. They lost. The judge said his display was protected under the first amendment (this was in 1988) but if he desecrated (burned) it then he would be fined $1,000 and/or have to spend a year in jail. What are your thoughts on the judge’s decision and on using the Flag as art, clothing, etc?

Response by CSM Darieus ZaGara made Oct 30 at 2018 3:42 AM

CSM Darieus ZaGara — Tue, 30 Oct 2018 03:42:08 -0400

To your question I dispose any desecration of our nations colors. However, that is one of the many freedoms we served to protect. Thank you for your service.

Response by Patricia Overmeyer made Oct 30 at 2018 11:51 AM

Patricia Overmeyer — Tue, 30 Oct 2018 11:51:16 -0400

The judge was incorrect and you need to have your instructor bring in a First Amendment attorney, or a second year law student, to properly instruct the class on the law. In 1968 Congress passed the Federal Flag Desecration Law which made it a federal offense to burn the flag. The law also allowed for states to pass similar laws. In the Texas v. Johnson case, 491 U.S. 397 (1989) the USSC held the state and federal law was unconstitutional. The majority opinion (Brennan, Kennedy, Marshall, Blackmun and Scalia) held that the "state or federal interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression." Scalia later said at a law school speech that he was not in favor of having people burn or desecrate the flag, but "I am not a king". Thus, the judge was incorrect when he stated that had the young artist burned the flag that he would be fined and/or imprisoned.
This legal reasoning has also been used when it comes to artwork, no matter what the medium of artwork. And it is also used in "non-political" speech cases, wherein someone wears a flag bikini or stands on a flag beach towel.
Personally, I find a flag bikini/speedo/etc. rather disgusting as vaginal, penile and anal detritus ends up on the "flag". I have my father's folded flag from his funeral and I will have my husband's folded flag from his funeral (unless I die first). My husband folded those flags over caskets for four months prior to going to Nam. Yet, I also remember that other nations have imprisoned their own people for "defiling" that nation's flag. That I do not agree with in any way, shape or form. Those types of laws are for dictatorships and nationalists types of government which are abhorrent. Thus I will defend any other person's use of the flag, whether for political speech or not, because the Constitution so demands. And I find the Constitution to be much more relevant than the flag.

Response by CPT Tom Fawls made Oct 30 at 2018 4:14 PM

CPT Tom Fawls — Tue, 30 Oct 2018 16:14:41 -0400

I don't have any issue with it, so long as it's a sympathetic, respectful use.

I appreciate that the right for someone to use it in a disrespectful manner is (rightly) protected, but I don't like to see that.