Old Glory vs. free speech: unflagging debate in courts

Old Glory - with stars and stripes glistening as the symbol of liberty and freedom for more than two centuries - still waves in majesty, and in controversy.

Earlier this week, the American flag prevailed in a key US Supreme Court test. But according to some civil libertarians, what it stands for in terms of constitutionally guaranteed freedom of expression may have been dealt a severe setback.

The high court rejected an appeal by Teresa Kime and Donald Bonwell, who were sentenced to six months in prison for setting fire to an American flag during a protest in Greensboro, N.C., in 1980. Ms. Kime and Mr. Bonwell were participating in a Revolutionary Communist Party demonstration and also protesting the prosecution of a party leader. In the prevailing argument, government lawyers insisted that Congress has the right to protect the flag from ''public acts of contemptuous destruction and desecration.''

By refusing to act on the appeal, the Supreme Court also upheld a federal law which prohibits ''knowingly casting contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, and trampling upon it.''

In a dissenting statement, Associate Justice William Brennan, a staunch defender of free speech, said the Constitution protects even the right to burn an American flag. Justice Brennan added that the law involved constitutes ''censorship, pure and simple.''

Legal authorities say we haven't heard the last of this issue.

In recent times, Old Glory has been caught in the volley of fire over such major disputes as the Vietnam war protests, the US boycott of the Moscow Olympics, reaction to the Iranian hostage crisis, and the separation of church and state issue.

Depending on the circumstances, the question has ranged from when to fly the flag and when not to hoist it to what constitutes legal (if impertinent) use and what qualifies as illegal desecration.

In the latter category, the court has ruled both ways. For example, in 1974 the US Court of Appeals struck down the conviction of a man on flag desecration charges on the basis of First Amendment rights. A lower court had found him guilty of violating a New Hampshire law making it a crime to attach a symbol to an American flag. He was arrested for carrying a blanket with an American flag emblazoned on it and a peace symbol sewn over the flag.

However, two years later, the US Supreme Court let stand the conviction of three teen-age girls (under an Illinois law) who burned a flag as an act of protest. Then, in this same period, the high court struck down the conviction of a Seattle man who had taped a peace symbol to an American flag. The state law was seen by the justices as an infringement of freedom of expression.

Outside the courtroom, the flag has played a key part in international disputes, and even church and state issues. For instance:

* During the hostage crisis in Iran, President Carter and Congress established a National Unity Day (Dec. 18, 1979) and, in protest of the holding of 53 Americans, asked all Americans to prominently display Old Glory at their homes.

At the same time, Gov. Edward J. King of Massachusetts, among other state chief executives, ordered all flags over state buildings to be lowered to half staff until the hostages were released.

* American officials, in boycotting the Olympic games in Moscow in 1980 to protest Soviet troop intervention in Afghanistan, asked that the American flag not be flown. But two young Americans unfurled the flag anyway during the games, sparking a heated controversy.

* The flag entered the church/state controversy in 1978 when New Hampshire Gov. Meldrim Thomson Jr. ordered federal and state flags lowered in commemoration of Good Friday. After a US district judge issued an injunction barring the governor from taking this action, a federal appeals court reversed the ruling and backed him. The US Supreme Court refused to intervene.

In 1974, GOP Gov. Francis Sargent of Massachusetts - a strong defender of the flag - nonetheless pocket-vetoed a bill that would have made it illegal to wear an American flag on the seat of the pants. Governor Sargent held that any attempt ''to legislate respect for the flag is doomed to failure. Respect will never come simply by adding new laws.''

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