FLAG burning is likely to get another airing in the United States Supreme Court - later this spring or next term. The justices should come to the same conclusion they did in 1989 unless they formulate a new definition for free speech. Last year, the high court struck down a Texas ordinance making desecrating the flag a crime, holding in the words of Associate Justice William Brennan that ``we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.''
That Justice Brennan, a confirmed civil libertarian and a First Amendment aficionado, would come down for free speech in this manner is not surprising. What is intertesting was that the prevailing five votes included those of staunch conservatives, Associate Justices Anthony Kennedy and Antonin Scalia.
Justice Kennedy's rationale perhaps represents that of many Americans who deplore the practice of flag burning but support the principle of free speech even when it hurts. The Court's newest member said: ``The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.''
The dissenters, Chief Justice William Rehnquist and Associate Justices Sandra Day O'Connor, John Paul Stevens, and Byron White, were concerned about the message this ruling would send to those who risked their lives in the cause of freedom. Stevens, referring to American soldiers who ``scaled the bluff at Omaha beach,'' said: ``If those ideas are worth fighting for - and our 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.''
The high court's split decision on flag burning brought more public reaction than perhaps any other issue, including abortion and capital punishment. Congress wanted the decision turned around. And President Bush called for a constitutional amendment that would, in effect, negate the ruling. In the end, both settled for a federal law, the Flag Protection Act of 1989, which made flag burning a crime.
Now the new congressional statute is under siege with two federal judges - in Seattle and in Washington, D.C. - striking it down. US Distict Judge June Green recently rejected the Justice Department's argument that the law was enacted to protect the flag and not to regulate speech. She said that flag burning is a form of political speech protected by the Constitution.
This ruling dropped criminal charges against three men who set several flags on fire during a political protest last fall outside the US Capitol.
Now Attorney General Dick Thornburgh is asking the Supreme Court to revisit the flag-burning issue in terms of the validity of the Flag Protection Act. He wants the high court to bypass the federal appeals process and review the Seattle and Washington, D.C., cases directly.
This is not an easy issue for the justices or any citizen. Patriotism is a cherished idea for most. Burning or otherwise desecrating the flag should be obnoxious to all, but it would weaken what the flag stands for if we were to outlaw its desecration strictly for political, or even patriotic, reasons.
The Supreme Court should either resist the Justice's Departments pressure to revisit flag burning or come to the same conclusion they did a year ago and strike down the federal legislation.