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Bibliography
Austin, John. Lectures on Jurisprudence or The Philosophy of Positive Law,
5th ed. Robert Campbell, ed., 1885.
Danzinger, Jeff. "Sgt. Krupke Learns About the Flag," The Christian
Science Monitor, September 25, 1989, p. 18.
Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review.
Cambridge, MA: Harvard University Press, 1980.
Fiss, Owen. "The Varieties of Positivism," 90 Yale Law Journal 1007 (1981).
Fletcher, George P. "Two Modes of Legal Thought," 90 Yale Law Journal 970
(1981).
Gillmor, Donald M., Jerome A. Barron, Todd F. Simon and Herbert A. Terry.
Mass Communication Law (fifth edition). St. Paul, MN: West Publishing Co.,
1990.
Gordon, Robert W. "Historicism in Legal Scholarship," 90 Yale Law Journal
1017 (1981).
Hopkins, W. Wat. "Flag Desecration as Seditious Libel," 68 Journalism
Quarterly 814 (1991).
Johnson, Conrad D. "Moral Positivism and the Internal Legality of Morals,"
17 Valparaiso University Law Review 383 (1983)
Kelman, Mark. A Guide to Critical Legal Studies. Cambridge, MA: Harvard
University Press (1987).
Kennedy, Duncan, "The Structure of Blackstone's Commentaries," 28 Buffalo
Law Review 205 (1979).
Koehler, Elizabeth. "Out of the Frying Pan and Into the Fire: 'Fixing'
Private Facts Litigation the Critical Legal Studies Way," unpublished
honors paper, 1991.
"Legislators Supporting Flag Move," New York Times, July 4, 1989, p. 6.
Marvin, Carolyn. "Theorizing the Flagbody: Symbolic Dimensions of the Flag
Desecration Debate, or, Why the Bill of Rights Does Not Fly in the
Ballpark," 8 Critical Studies in Mass Communication 119 (1991).
Roanoke Times & World News, June 13, 1989, at A1.
Shuman, Samuel I. Legal Positivism. Detroit: Wayne State University Press,
1963.
Streeter, Thomas. "Beyond Freedom of Speech and the Public Interest: The
Relevance of Critical Legal Studies to Communication Policy," 40 Journal
of Communication 43 (1990).
Toner, Robin. "President To Seek Amendment to Bar Burning the Flag," New
York Times, June 28, 1989, p. 1.
Trippett, Frank. "A Few Symbol-Minded Questions," Time, August 28, 1989,
p. 72.
Tushnet, Mark. "Critical Legal Studies: An Introduction to its Origins and
Underpinnings," 36 Journal of Legal Education 505 (1986).
Underwood, Barbara. "Against Dichotomy," 90 Yale Law Journal 1004 (1990).
Unger, Roberto M. "The Critical Legal Studies Movement." 96 Harvard Law
Review 563 (1983).
"Were We Lying When We Pledged Our Allegiance?" full-page ad taken out by
Perkins Family Restaurants, Minneapolis Star Tribune, July 4, 1989, p. 8E.
Woodward, Bob and Scott Armstrong. The Brethren. New York: Simon &
Schuster, 1979.
Heat of the Moment:
flag-burning and legal theory
Abstract: The U.S. Supreme Court invalidated 48
state flag desecration laws and the equivalent federal statute
in Texas v. Johnson in 1989. The Court was divided 5-4. Brennan
wrote for the majority, Kennedy filed a concurring opinion, and
both Stevens and Chief Justice Rehnquist offered dissenting
opinions. This paper analyzes these opinions in light of three
socio-legal theories: historicism, positivism, and critical
legal studies.
Heat of the Moment:
flag-burning and legal theory
Genelle I. Belmas
University of Minnesota
School of Journalism and Mass Communication
111 Murphy Hall
206 Church St. SE
Minneapolis, MN 55455
(612) 624-5038
Email: [log in to unmask]
A paper submitted for consideration
for the 1997 AEJMC annual convention
July 30-Aug. 2, 1997, Chicago, Ill.
The sole author of this paper is a graduate
student;
please consider this paper for the Whitney and Shirley Mundt Award.
Bibliography
Austin, John. Lectures on Jurisprudence or The Philosophy of Positive Law,
5th ed. Robert Campbell, ed., 1885.
Danzinger, Jeff. "Sgt. Krupke Learns About the Flag," The Christian
Science Monitor, September 25, 1989, p. 18.
Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review.
Cambridge, MA: Harvard University Press, 1980.
Fiss, Owen. "The Varieties of Positivism," 90 Yale Law Journal 1007 (1981).
Fletcher, George P. "Two Modes of Legal Thought," 90 Yale Law Journal 970
(1981).
Gillmor, Donald M., Jerome A. Barron, Todd F. Simon and Herbert A. Terry.
Mass Communication Law (fifth edition). St. Paul, MN: West Publishing Co.,
1990.
Gordon, Robert W. "Historicism in Legal Scholarship," 90 Yale Law Journal
1017 (1981).
Hopkins, W. Wat. "Flag Desecration as Seditious Libel," 68 Journalism
Quarterly 814 (1991).
Johnson, Conrad D. "Moral Positivism and the Internal Legality of Morals,"
17 Valparaiso University Law Review 383 (1983)
Kelman, Mark. A Guide to Critical Legal Studies. Cambridge, MA: Harvard
University Press (1987).
Kennedy, Duncan, "The Structure of Blackstone's Commentaries," 28 Buffalo
Law Review 205 (1979).
Koehler, Elizabeth. "Out of the Frying Pan and Into the Fire: 'Fixing'
Private Facts Litigation the Critical Legal Studies Way," unpublished
honors paper, 1991.
"Legislators Supporting Flag Move," New York Times, July 4, 1989, p. 6.
Marvin, Carolyn. "Theorizing the Flagbody: Symbolic Dimensions of the Flag
Desecration Debate, or, Why the Bill of Rights Does Not Fly in the
Ballpark," 8 Critical Studies in Mass Communication 119 (1991).
Roanoke Times & World News, June 13, 1989, at A1.
Shuman, Samuel I. Legal Positivism. Detroit: Wayne State University Press,
1963.
Streeter, Thomas. "Beyond Freedom of Speech and the Public Interest: The
Relevance of Critical Legal Studies to Communication Policy," 40 Journal
of Communication 43 (1990).
Toner, Robin. "President To Seek Amendment to Bar Burning the Flag," New
York Times, June 28, 1989, p. 1.
Trippett, Frank. "A Few Symbol-Minded Questions," Time, August 28, 1989,
p. 72.
Tushnet, Mark. "Critical Legal Studies: An Introduction to its Origins and
Underpinnings," 36 Journal of Legal Education 505 (1986).
Underwood, Barbara. "Against Dichotomy," 90 Yale Law Journal 1004 (1990).
Unger, Roberto M. "The Critical Legal Studies Movement." 96 Harvard Law
Review 563 (1983).
"Were We Lying When We Pledged Our Allegiance?" full-page ad taken out by
Perkins Family Restaurants, Minneapolis Star Tribune, July 4, 1989, p. 8E.
Woodward, Bob and Scott Armstrong. The Brethren. New York: Simon &
Schuster, 1979.
Heat of the Moment:
flag-burning and legal theory
Abstract: The U.S. Supreme Court invalidated 48
state flag desecration laws and the equivalent federal statute
in Texas v. Johnson in 1989. The Court was divided 5-4. Brennan
wrote for the majority, Kennedy filed a concurring opinion, and
both Stevens and Chief Justice Rehnquist offered dissenting
opinions. This paper analyzes these opinions in light of three
socio-legal theories: historicism, positivism, and critical
legal studies.
Heat of the Moment:
flag-burning and legal theory
Genelle I. Belmas
University of Minnesota
School of Journalism and Mass Communication
111 Murphy Hall
206 Church St. SE
Minneapolis, MN 55455
(612) 624-5038
Email: [log in to unmask]
A paper submitted for consideration
for the 1997 AEJMC annual convention
July 30-Aug. 2, 1997, Chicago, Ill.
The sole author of this paper is a graduate
student;
please consider this paper for the Whitney and Shirley Mundt Award.
Heat of the Moment: flag-burning and legal theory D
Burn judges, not flags.
Dseen on a bumper sticker
In 1984, Gregory Lee Johnson participated in a political demonstration in
Dallas. The purpose of the demonstration (dubbed the "Republican War Chest
Tour") was to express dissatisfaction with certain Reagan administration
policies. This demonstration may well have faded from the annals of history as
just another political protest but for one of Johnson's actions: He accepted an
American flag handed to him by another protester, doused it with kerosene and
lit it on fire, chanting with other protesters: "America the red, white, and
blue, we spit on you."[1]
Johnson was arrested and convicted under a Texas statute that forbids the
desecration of a venerated object (Tex. Penal Code Ann. 42.09(a)(3) (1989)).
He appealed. The Texas Court of Criminal Appeals reversed his conviction,
stating that Texas could not, consistent with the First Amendment, punish
Johnson for burning the flag. The Supreme Court granted certiorari and affirmed
the lower court's decision, overturning Johnson's conviction and invalidating 48
state flag desecration laws and the equivalent federal statute.
Did the Court "do the right thing?" This paper does not seek to answer that
politically charged question; each individual must answer for himself/herself.
What this paper will set out to do is to describe arguments on all sides and
then analyze them in light of several important socio-legal theories that may
guide scholarly consideration of the topic. Rather than a theoretical checklist,
the purpose is to judge which theoretical frameworks are most useful in dealing
with flag-burning and similar issues.
Writing for the five-person majority that included Justices Thurgood Marshall,
Harry Blackmun, Antonin Scalia and Anthony Kennedy, Justice William Brennan
concluded that Johnson's actions were expressive conduct protected by the First
Amendment, and that Texas could not punish flag desecration even to preserve the
flag as a symbol of the nation. Further, he noted that the statute did not meet
Texas' goal of preventing breaches of the peace (it was not narrowly enough
drawn), and there was no breach of the peace in this case in any regard. 491
U.S. 397 at 402-406.
Brennan also applied the tests found in U.S. v. O'Brien, 391 U.S. 367 (1968)
(symbolic speech), and Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
("fighting words"), and found that neither could be met. Therefore, because
government cannot sanction or prohibit ideas simply on the basis of their
palatability, and the Court declined to create a special exception for the flag,
Johnson's conviction was overturned. Ibid. at 406 -422.
Justice Kennedy filed a concurring opinion, lamenting the fact that the law
permitted no other outcome of the case. Ibid. at 420. Chief Justice William
Rehnquist, joined by Justices Byron White and Sandra Day O'Connor, filed a
dissenting opinion, drawing on the historical value of the flag and its power as
a national symbol. Ibid. at 421-435. Justice John Paul Stevens also filed a
dissenting opinion. Ibid. at 436-439.
The decision set off a firestorm of public outrage and press coverage.[2] Much
of the coverage damned the Court for its decision, and the decision sparked
Congress' adoption of the Flag Protection Act.[3] The Court overturned this 1989
act in U.S. v. Eichman, 110 S. Ct. 2404 (1990). Then-President George Bush
called for a constitutional amendment to protect the flag, saying that what the
flag stands for is "too sacred to be abused,"[4] and although this amendment has
never made it into the Constitution, we can expect the debate to recur.
Why so much fervor for the flag? Why does this piece of fabric engender such
staunch patriotism? More importantly, why does burning the flag provoke such
outrage in Americans? As one citizen put it, "It's like stepping on your family
to burn the flag. Who'd want to do that?"[5]
A Historical Setting
Rehnquist provides some historical context in his dissenting opinion, "By June
14, 1777, after we declared our independence from England, the Continental
Congress resolved: 'That the flag of the thirteen United States be thirteen
stripes, alternate red and white: that the union be thirteen stars, white in a
blue field, representing a new constellation.' " 491 U.S. at 422. It does not
appear that flag desecration acts appeared until the 20th century. The Chief
Justice refers to the existence of a Uniform Flag Act of 1917 upon which the
states based their flag desecration laws (most of which were in place by World
War I), ibid. at 428; however, the Federal Flag Desecration Statute, 18 USC
700, was not enacted until 1968 when flag-burnings protesting the war in Vietnam
were alleged to cause a fall in morale for the troops stationed there. Ibid. at
426.
State and federal flag desecration laws do not pertain solely to flag-burning.
Most flag desecration laws include language such as "publicly mutilating,
defacing, defiling, burning, or trampling"[6] upon the flag, and some add
language such as "by words or act cast contempt upon" the flag, or emphasize the
need to "prevent breaches of the peace which might result from the improper use
of and disrespect to the flag."[7] However fascinating other aspects of these
laws and the case law which has arisen from their application, the purpose here
is to examine flag-burning in particular.
Flag-burning is less extensive in case law than other symbolic speech uses of
the flag. In 1970, the Supreme Court of Washington overturned the conviction of
a man who had held a flag while another set fire to it on the grounds that the
record did not indicate the burner's intention. State v. Turner, 474 P2d 91
(Wash. 1970).
In the only other major Supreme Court flag-burning case, Street v. New York,
394 U.S. 576 (1969), Justice John Marshall Harlan declined to consider the
flag-burning aspect primary in the case. Instead he chose to base his opinion on
what Street had said while burning the flag and thus reversed Street's
conviction on free-speech groundsDdrawing a blaze of dissent from his
colleagues, most of whom wanted the constitutionality of flag-burning to be the
central issue and who supported the protection of the flag.[8] Therefore, the
Court had little direct precedent on which to rely in Johnson.
"It's Like Stepping on Your Family"
Some people, particularly veterans and families of veterans, attach significant
emotional weight to the flag. Francis Rafferty, a Philadelphia city councilman,
asserted during a panel discussion on the defeat of the proposed flag amendment
that the true meaning of the flag is what Gold Star mothers (mothers who have
lost sons in combat) do with it:
When a Gold Star mother_gets that flag, you have to
watch them. You have to watch what they do with that flag;
they cradle that flag like they do a baby, and to them it's a
symbol of that son, and when you burn that flag, you're taking
another shot at her son, a son who she'll never see again.
It's more than just a flag, it's that baby, that's what it is.[9]
Rafferty's comment goes to the heart of the matterDshould proponents of
flag-burning have the right to hurt emotionally a Gold Star mother (or father)
or a veteran?
Rehnquist points to some of those very events that make the flag so potent in
his dissent in Johnson: "For more than 200 years, the American flag has occupied
a unique position as the symbol of our Nation." 491 U.S. 397 at 421. Some,
particularly veterans, argue vehemently that the flag represents the country and
the men and women who have foughtDand, in some cases, diedDfor the country.
Justice William Brennan, writing for the Court in Johnson, paid homage to the
flag as an important national symbol: "It cannot be gainsaid that there is a
special place reserved for the flag in this Nation_[T]he flag's deservedly
cherished place in our community will be strengthened, not weakened, by our
holding today." Ibid. at 418 and 419 (emphasis added).
One cannot argue with the power of the flag as a pervasive national symbol nor
with the emotions it evokes from soldier and civilian alike. The question
becomes, then, if the flag has such a revered and precious position in our
society, why not forbid its desecration? If so many people, from the President
down to the man or woman on the street, find the very idea offensive or even
painful, how could someone fail to ban the burning of the flag?
"The Law and the Constitution_Compel the Result"[10]
The quote above is taken from Kennedy's concurring opinion in Johnson. "I do
not believe the Constitution gives us the right to rule as the dissenting
Members of the Court urge, however painful this judgment is to announce," he
wrote. Ibid. at 420. The same could be said of the lower court's decision in the
famous "Nazis in Skokie" case, Village of Skokie v. National Socialist Party,
373 N.E. 2d 21 (Ill. 1978); although the court knew that to permit the Nazis to
march in Skokie with its substantial Jewish population and display the swastika
would cause considerable discomfort and pain. "The display of the swastika," the
court noted, "as offensive to the principles of a free nation as the memories it
recalls may be, is symbolic political speech intended to convey to the public
the beliefs of those who display it."[11]
In his opinion for the Court in Johnson, Brennan never disagrees with the
dissenters that the flag holds an important place in American life. In fact, he
believes quite strongly that his opinion bolsters the flag's reputation rather
than tears it down: "We do not consecrate the flag by punishing its desecration,
for in doing so we dilute the freedom that this cherished emblem represents.
_The way to preserve the flag's special role is not to punish those who feel
differently about these matters. It is to persuade them that they are wrong."
391 U.S. 397 at 420 and 419. The remedy for speech we deem "evil" is not
punishment, but more speechDan echo of Justice Louis Brandeis in Whitney v.
California, 274 U.S. 357 (1927). Brennan also quotes from Justice Robert Jackson
in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), a case in
which the Court struck down compulsory flag salutes: "If there is any fixed star
in our constitutional constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their faith
therein." Ibid. at 642. The First Amendment does not play favorites. It
protected Johnson's speech even when it was repellent to many listeners, and it
has protected other such speech through the years.[12]
Many individuals are persuaded by such arguments. We cannot make an exception,
much as we might like to, for the flag. If we exempt the flag, then what will we
have to exempt next? Will we be unable to desecrate any governmental symbol or
anything that might cause offense? Might that prohibition multiply so that
government can forbid discordant points of view in any area? We will have eroded
the First AmendmentDone of the bedrock principles the flag representsDin an
attempt to save the flag from those who would desecrate it. How can we, in good
faith, do that?
Theories of Analysis
Three theoretical frameworks will be used to discuss the pros and cons of the
Court's decision in Johnson and thus, indirectly, flag-burning in general. These
are historicism, positivism, and critical legal theory. The theories are
discussed from the point of view of the bench because judges (and particularly
Supreme Court Justices) are in a unique position to be able to effect changes in
the theory of the law. An important caveat is that none of these theories can be
wholly separated from the others. Their definitions may overlap to greater or
lesser degrees. Accordingly, justices' opinions, although they might fit more
neatly into one theory than another, are not devoid of characteristics of other
theories. This may sound like a truism; however, in the sometimes rarefied realm
of legal theory, one can become lost in detail and forget that these theories
may share characteristics and may not be as wholly disparate as they may seem.
Historicism
According to Robert Gordon, historicism is "the perspective that the meanings
of words and actions are to some degree dependent on the particular social and
historical settings in which they occur, and to interpretations and criticisms
that are suggested by that perspective."[13] In this perspective, as
distinguished from legal positivism, morality and law are not separate. Although
this theory is arguably the most straightforward, it is far from simple.
The useful aspects of this theory are easy to see: Historicism lends an air of
authority to a judicial decision. The concept of stare decisis ("let the law
stand") can be powerful. Today's Court tends to be a states' rights,
decentralizing judicial force that is cautious in overturning a state law and
likely to encourage states to use their own constitutions.[14]
However, Gordon quickly points out some of the dangers of this approach. He
suggests a few potential arguments by historicism critics: Scholars may
inadequately account for historical and social aspects in their research
materials and thereby severely bias their work.[15] A work is archaic if it can
be shown to embody perspectives unlike our ownDand therefore is irrelevant.[16]
Gordon also notes the "original intent" debate as a potential problem.[17]
A historicist judge uses morality, precedent and historical arguments as bases
for deciding the outcome of a case. Thus, if a judge were morally opposed to
flag-burning, he/she would search for appropriate historical and legal precedent
to ban it. For example, the Devil uses a historicist approach when he cites
Scripture for his purposes.
Of the justices writing in the Johnson case, Rehnquist is closest to the ideal
historicist. He begins his dissenting opinion by quoting Justice Oliver Wendell
Holmes: "A page of history is worth a volume of logic." 491 U.S. 397 at 421,
quoting New York Trust Co. v. Eisner, 256 U.S. 345 at 349 (1921).[18] He applies
legal precedent mostly tangentially, the majority of the opinion being devoted
to an examination of historical events supporting the flag's special place.
Rehnquist thinks the flag's special position in society warrants its protection
from those who would defile it; thus, he knew the way he wanted the case to come
out and pulled in historical examples to bolster that belief. His examples fly
fast and furiously, rushing through American history from the advent of the
flag, to the writing of the National Anthem, to the lowering of the flag at Fort
Sumter heralding the start of the Civil War, to the First and Second World Wars,
particularly at Iwo Jima where 6,000 American lives were lost to take Mount
Suribachi and raise the flag. 491 U.S. 397 at 422-426. He does make use of legal
precedent to strengthen his defense, as any jurist will, but his heavy reliance
on historical sources to support his moral belief in the sanctity of the flag is
an excellent example of how a historicist judge might approach a case.
Kennedy, on the other hand, though he relies on precedent, is not a historicist
judge under this definition; he would have preferred that the case come out the
opposite of how it did, but he could not find justification to support his moral
desires. "I join [the majority] opinion without reservation," he wrote, "but
with a keen sense that this case, like others before us from time to time,
exacts its personal toll." Ibid. at 420. Here Kennedy expresses his moral
anguish in having to join the majority opinion, but he feels compelled by the
law to do so.
Stevens' dissenting opinion, though shorter and more sober than Rehnquist's,
contains some of the same sentiments. He talks about the flag in the same
reverent tones as others; he desires to see the flag protected: "[I]n my
considered judgment, sanctioning the public desecration of the flag will tarnish
its valueDboth for those who cherish the ideas for which it waves and for those
who desire to don the robes of martyrdom by burning it." Ibid. at 437. He also
makes use of legal precedent, but much of the weight in his arguments comes from
historically based rhetoric: "The creation of a federal right to post bulletin
boards and graffiti on the Washington Monument might enlarge the market for free
expression, but at a cost I would not pay." Ibid.
However, Stevens' ideology in this case is less strictly historicist than
Rehnquist's; his dissenting opinion, while historically based, is more tentative
than is Rehnquist's: "[T]his case has an intangible dimension that makes those
[previously decided symbolic speech] rules inapplicable." Ibid. at 436, emphasis
added. The problem with this assertion is that he never tells us what that
dimension is or even intimates to what it might be.[19] Stevens, therefore,
would fall on the historicism spectrum somewhere between Kennedy and Rehnquist,
although his opinion more resembles Rehnquist's.
Brennan's majority opinion pays homage to the flag as a powerful national
symbol deserving of respect and even reverence. But these historical aspects,
powerful as they are, cannot override what Brennan views as a more important
end: the preservation of the First Amendment. His personal moral ideology is
more liberal; he is, therefore, more likely to want to preserve the First
Amendment. Because his is the majority opinion, he must build a consensus and
pull in as much support, either historical or precedential, as he can to gain
the votes he needs. His opinion uses many legal precedents that support his
decision; the equivalent of two pages of his opinion with legal citations and
case descriptions provide this support. Ibid. at 404-409.
However, if Brennan's moral system would lead him to safeguard the principles
the First Amendment protects, he would have to use some powerful language, and
he does: "If there is a bedrock principle underlying the First Amendment, it is
that the government may not prohibit the expression of an idea simply because
society finds the idea itself offensive." Ibid. at 414, emphasis added. He
follows this assertion with half a page of citations that support this
contention. This is the heart of Brennan's moral position: to erode the First
Amendment in this manner would open the door to other erosions of freedom of
expression.
To conclude that government may permit designated
symbols to be used to communicate only a limited set of
messages would be to enter territory having no discernible or
defensible boundaries. _ In evaluating these choices under
the First Amendment, how would we decide which symbols were
sufficiently special to warrant this unique status? To do so,
we would be forced to consult our own political preferences,
and impose them on the citizenry, in the very way that the
First Amendment forbids us to do. Ibid. at 417.
Brennan starts from the premise that government cannot restrict ideas it finds
distasteful and concludes that the First Amendment cannot abide the conviction
of Johnson for his expressive conduct.[20] He would fall between Stevens and
Kennedy on the historicism scale; he uses much more legal precedent and much
less history to make his point.
Positivism
Legal positivism, developed by the English philosopher John Austin,[21] is
somewhat similar to scientific positivism.[22] It is the belief that law and
morals are separate, and the nature of morals is distinct from the nature of
law.[23] What Owen Fiss would characterize as legal positivism "represents the
view that there is no necessary or logical relationship between what the law is
and what the law ought to be."[24] This seems like a simple enough definition.
However, we must examine the ramifications of such a dichotomy.
It follows from the definition that evil legal systems may exist (systems
devoid of morals), as Conrad Johnson notes.[25] "Law can be unjust or evil and
yet be law," Fiss adds, "in the sense that citizens have the duty to obey the
law and that officials are entitled to punish those who disobey it."[26]As a
corollary, John Hart Ely suggests that judges can and will follow their own
values when deciding cases, if indeed there is no direct connection between law
and morals. [27] Immoral judges, therefore, might result in immoral law, and if
there is no moral structure within which judges may function, they are likely to
stray.
Positivists believe that law must be subject to verificationDagain, not unlike
scienceDfor if law and morals were interwoven, morally controversial rules would
pose a serious obstacle to verification of what the law is. Because positivists
seek to avoid controversy in determining what is "law" and what is not, moral
disputes about laws would make it difficult to determine what actually the law
is and what it is not. [28] Positivists also believe that every legal system has
a "finite set of rules that determines who can make, enact, or declare the
law."[29]
A wholly positivist judge would simply apply the law and accept the end result
because that judge would have separated in his/her mind what the law is from
what the law ought to be. The morality of the result would not be a
consideration, as it would be for judges with other theoretical perspectives;
the means are more important to a true positivist judge than the ends. Truly
positivist judges would care less what the outcome ought to be.
Therefore, an ideal positivist judge in Johnson would simply apply the law and
see what happens. Depending on the judge, the decision would fall either as it
did if the judge believed that the law (as it is) supported the First Amendment,
or oppositely if the judge believed the law (as it is) supported any other
option.
But justices are human, and they cannot perfectly separate the "is" and the
"ought" even if they want to do so. If we analyze the opinions in the Johnson
case, we see the shades of positivism. Kennedy, who concurred in the majority
opinion but wrote a separate opinion, has clearly separated law and morality.
His is nearly a complete positivist opinion as he writes, "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." 491 U.S. at 420-421. His is, perhaps, the most pristine
example of any of the three theories we are considering, although it does
contain a few historical elements.
Brennan in the majority opinion also dutifully applies precedents and finds
that the First Amendment prevents Johnson's conviction. Although the opinion is
not purely positivist, Brennan takes pains to rely only partially on moral
arguments; again, because consensus-building is a delicate art, justices have to
give and take to influence the Court.[30]
Brennan may have also added some language to assuage what he must have known
would be a furious attack from the opposing side, as well as from the public and
the President: "Our decision is a reaffirmation of the principles of freedom and
inclusiveness that the flag best reflects, and of the conviction that our
toleration of criticism such as Johnson's is a sign and source of our strength."
Ibid. at 419. Because we know that Brennan tends toward the "liberal" side of
the Court, we can speculate that he had certain liberal agendas in mind when
drafting the opinion, but the actual text in the opinion would certainly not
prove it.
Stevens' and Rehnquist's dissenting opinions were very similar in one respect:
both focused on aspects of the flag they believed should warrant its special
treatment. For Rehnquist, it was the flag's ability to elicit "an almost
mystical reverence" (Ibid. at 429) from millions of Americans. For Stevens, it
was the aforementioned "intangible dimension" (Ibid. at 436) that makes this
case different from all other symbolic speech cases the Court had previously
decided. In both instances, the justices chose to state what they thought the
outcome "ought" to be and then attempt to fit a combination of legal precedent
and history around that conclusionDthe antipositivist position. They also had an
outcome in mind, and it differed dramatically from Brennan's.
Again, Rehnquist used the historicist approach and pulled in various historical
events to support his point of view. Stevens, a bit more cautious, choose more a
blend of approaches. However, it is still clear that Stevens recognized the
issues at hand in the light of history and also made a moral judgment: "If those
ideas [of liberty and equality] are worth fighting forDand our history
demonstrates that they areDit cannot be true that the flag that uniquely
symbolizes their power is not itself worthy of protection from unnecessary
desecration." Ibid. at 439. But, as suggested in the following section, Stevens'
opinion fits neither of the above theories as well as it does another.
Critical Legal Studies
The entire realm of knowledge under the general rubric of "critical legal
studies" (CLS) is too varied to describe in depth here. In fact, as Mark Tushnet
notes, to attempt to define CLS would be to do it a disservice, since many
theorists are still at work attempting to define and refine its contours.[31]
Herein will be a brief and incomplete attempt at definition.
CLS came on the stage as an attack on the liberal legal structure. It has taken
much abuse in the legal community and has split the ranks of several prestigious
law schools, most notably Harvard. Mark Kelman contends that the furor over CLS
is due as much to the condescending tenor of CLS academic writing and its
tendency to draw young professors away from "mainstream" legal thought as it is
to the actual arguments CLS advances.[32] Others echo this sentiment.[33]
CLS removes value-neutrality from language and collective procedures: Under its
tenets, individuals are inextricably intertwined with society, and "rights" are
socially constructed, not natural or universal.[34] This can be loosely termed a
"contextual" bent. What follows from this is a definition that is nearly the
opposite of positivism:
Using detailed textual analyses of laws and legal
judgments, CLS scholars show that opposite interpretations are
equally valid within the logic of legal reasoning and that it
is impossible to distinguish between competing legal
interpretations of a given situation without turning to
nonlegal factors, such as personal moral beliefs, social
structure, or power relations.[35]
This is the concept of legal indeterminacy. Whereas legal liberalism believes
strongly in the opposition of individual and society, CLS views this separation
as paradoxical. [36] As Duncan Kennedy, a critical legal theorist, put it, "But
at the same time that it forms and protects us, the universe of others_threatens
us with annihilation_. Numberless conformities, large and small abandonments of
self to others, are the price of what freedom we experience in society."[37]
One other important aspect of CLS is its desire to completely remodel the
system of rightsDand keep remodeling it. Roberto Unger, one of the leading CLS
proponents, would reform the government and system of rights into
"superliberalism,"[38] "push[ing] the liberal premises_to the point at which
they merge into a larger ambition: the building of a social world less alien to
a self that can always violate the generative rules of its own mental or social
constructs and put other rules and other constructs in their place."[39] Power
is a very important concept in Unger's philosophical world.
Carolyn Marvin expounds a fascinating critical view regarding flag-burning. She
distinguishes the flag as a "body" from the Bill of Rights as "text," even
though both serve as "symbols" for a nation.[40] The "flagbody," however, is not
saved by the "text" of the Bill of Rights. The body-text dichotomy will be
explored further as we examine Johnson in light of CLS.
A hypothetical judge who is a critical legal theorist, then, would examine
his/her own morals to determine the appropriate outcome for a case and then
proceed accordingly. Judge A wants the flag to be protected; she uses any one of
the arguments advanced in the positivist section above. Judge B wants Johnson to
be protected; he uses the First Amendment arguments put forth by Brennan. Under
CLS, these outcomes would be equally valid because language is not neutral,
permanent nor universal, and law based on this shifting language, therefore,
cannot be neutral and could support either outcome.[41]
CLS would also support either result in Johnson as equally valid under the same
criteria. Brennan, writing for the majority, and Kennedy in his concurring
opinion, emphasized what precedents had gone before (stare decisis). Rehnquist
and Stevens in their dissenting opinions placed heavier weight on historical and
emotional arguments. The Court balancing the right of Johnson to burn the flag
in a political protest against the right of the millions of Americans who,
Rehnquist claims, do not want to see the flag burned in the context of their
moral belief structures, societal values, etc.; the decision could not be made
on the basis of a "neutral law" because such a thing does not exist.
EverythingDlaw, values, moralsDis contextual. Brennan's arguments simply found
support in one additional justice than did the dissenters'.
We have already loosely categorized Rehnquist's dissenting opinion as having
historicist underpinnings and Kennedy's concurring opinion as being almost
pristinely positivist. Stevens' dissenting opinion, however, is arguably
representative of CLS.
Several times in his dissenting opinion, Stevens refers to concepts that are
"intangible." As we noted before, he mentions the "intangible dimension that
makes those [previously decided symbolic speech] rules inapplicable," 491 U.S.
at 436. Later, he discusses the importance of preserving the flag as an
"important national asset" (Ibid. at 438-439): "Though the asset at stake in
this case is intangible, given its unique value, the same interest supports a
prohibition on the desecration of the American flag." Ibid. at 439.
Clearly, Stevens is trying to get a handle on a concept he believes to be
important but cannot describe. This might be because he has nothing to hang his
thoughts on except a gut feeling about what he perceives the outcome should be.
Justice Potter Stewart experienced the same feelings when asked about the
definition of hard-core pornography; he responded that he could not define it,
but "I know it when I see it."[42] Both Stevens and Stewart were searching for
contextDsomething they could use to pin down that elusive concept. Proponents of
CLS would maintain that this searching is exactly what they ought to be doing,
because it is only through context that law, language or morals have any
meaning. Without a context, law and language become simple abstractions, without
substantive meaning.
Before we leave CLS, I would like to discuss Carolyn Marvin's view of the flag
as body and the Bill of Rights as textDa very interesting critical legal notion
that merits further consideration.[43] Her analysis is very contextualDthat
hallmark of CLSDand suggests that how a person feels about flag-burning is
determined by his/her social context. Marvin defines this distinction as
follows:
Those who command the text are most entitled to
preserve their bodies and shield them from physical effort and
danger. The body, by contrast, is the emblem and resource of
those without textual credentials, whose bodies are available
to be used up by society and whose power and participation
derive from whatever value their bodies have for cultural
musclework.[44]
She might suggest that individuals who feel disenfranchised by their lack of a
textual connection (i.e., education, or financial security), since they would be
more likely to identify with the body, would be more likely to despise the idea
of flag-burning because they view the flag as a totem that stands for them. In
contrast, more "textual" individuals (educated and financially secure) would
have the power and the confidence to take the high road and support the
textually based First Amendment.[45]
Marvin points out several occurrences of this text-body dichotomy in Johnson,
even though the Supreme Court is "as text-bearing an institution as we have, by
virtue of embodying the dispositive force of the sacred texts of the
Constitution and the Bill of Rights."[46] From Brennan's majority opinion:
"Pregnant with expressive content, the flag as readily signifies this Nation as
does the combination of letters found in 'America,' " 491 U.S. 397 at 405, a
concession to those who would consider the flag a sacred body. Rehnquist wrote
in body-related language as well: "[F]lag burning is the equivalent of an
inarticulate grunt or roar that, it seems fair to say, is most likely to be
indulged in not to express any particular idea, but to antagonize others." Ibid.
at 432.
There are other examples of this dichotomy. Stevens in a footnote likens
flag-burning to desecrating a gravesite, connecting the flagbody with a dead
body. Ibid. at 439n. Rehnquist quotes Justice Abe Fortas in U.S. v. Street,
supra.: "[T]he flag is a special kind of personality. _ A person may 'own' a
flag, but ownership is subject to special burdens and responsibilities;" 491
U.S. at 433. This description makes the flag sound like a pet, to be cared for
and nurtured.
Marvin concludes that there is a class of people who equate acting against the
flag to violating a physical body with attendant repercussions, whereas they
consider speech to be abstract and non-violent and correspondingly less
punishable.[47] Her analysis provides another context in which to consider the
flag-burning issue, an analysis which provides a structure for her arguments, as
CLS proposes is appropriate.
Fuel for the Fire
I have provided in this paper a discussion of the flag-burning issue in light
of three important legal theories. Rehnquist's dissenting opinion in Texas v.
Johnson is representative of a historicist approach, Kennedy's concurring
opinion is representative of a positivist approach, and Stevens' dissenting
opinion is representative of a critical legal studies approach. Brennan's
opinion is difficult to fit into any one category, I have maintained, because it
was the majority opinion, and Brennan may have had to give a little to get a
little. As an experienced opinion drafter, he might well have used his
formidable legal writing skills to pull in as many arguments as possible to
build that all-important consensus.
Perhaps readers will be able to apply the historicist, positivist and CLS
theories to other cases they encounter. Coupled with similar studies, this paper
might form part of a foundation on which to base an explanatory model: based on
what we have seen justices do in the past in light of these and other legal
theories, we might be able to predict what they might do and how they might do
it in future cases involving freedom of expression.
In these theories we have seen not only differences in what the Court does, but
in what the Court ought to be doing. Not only that, but the Court's power
continues to grow; it steps in when legislatures are paralyzed or when the
federal government gets out of hand. As the Court's power grows, researchers
become more and more determined to tame the beast by understanding it. The
number of theories is likely to expand before it contracts, if CLS is any
indication.
[1] These and other facts of the case are taken from Texas v. Johnson, 491 U.S.
397 (1989).
[2] See, e.g., Robin Toner, "President To Seek Amendment to Bar Burning the
Flag," New York Times, June 28, 1989, p. 1; "Legislators Supporting Flag Move,"
New York Times, July 4, 1989, p. 6, "Were We Lying When We Pledged Our
Allegiance?" full-page ad taken out by Perkins Family Restaurants, Minneapolis
Star Tribune, July 4, 1989, p. 8E. For the lighter side, see, e.g., Frank
Trippett, "A Few Symbol-Minded Questions," Time, August 28, 1989, p. 72; Jeff
Danzinger, "Sgt. Krupke Learns About the Flag," The Christian Science Monitor,
September 25, 1989, p. 18.
[3] Flag Protection Act, Pub. L No. 101-103, 103 Stat 777 (1989).
[4] Hopkins, "Flag Desecration as Seditious Libel," 68 Journalism Quarterly 814
(1991) at 816, quoting Roanoke Times & World News, June 13, 1989, at A1.
[5] Marvin, "Theorizing the Flagbody: Symbolic Dimensions of the Flag
Desecration Debate, or, Why the Bill of Rights Does Not Fly in the Ballpark," 8
Critical Studies in Mass Communication 119 (1991) quoting a citizen comment from
WPVI-TV News.
[6] 41 ALR3d 502 at 504.
[7] Ibid.
[8] Even Chief Justice Earl Warren, the leader of the liberal and activist 1960s
Warren Court, wrote, "I believe that the States and the Federal Government do
have the power to protect the flag from acts of desecration and disgrace. But
because the Court has not met the issue, it would serve no purpose to delineate
my reasons for this view." 394 U.S. at 605.
[9] Ibid. at 124.
[10] Kennedy's concurring opinion in Johnson, ibid. at 421.
[11] Quote taken from case abstract in Gillmor et al., Mass Communication Law
(fifth edition). St. Paul, MN: West Publishing Co., 1990, p. 36.
[12] Cf. West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943);
United States v. O'Brien, 391 U.S. 367 (1968); Tinker v. Des Moines Independent
Community School District, 393 U.S. 503 (1969); Street v. New York 394 U.S. 576
(1969); these are only a few examples.
[13] Gordon, "Historicism in Legal Scholarship," 90 Yale Law Journal 1017
(1981) at 1017.
[14] Cf. Heffron v. International Society for Krishna Consciousness, 452 U.S.
640 (1981), where the Court reversed the decision of the Minnesota Supreme Court
and reprimanded it for its dependence on the First Amendment rather than on its
own Constitution to provide greater protection for speech activities.
[15] Gordon, supra n. 13 at 1020.
[16] Ibid. at 1021.
[17] Ibid. at 1020.
[18] Although Holmes is more closely identified with the positivist cause, this
quote seems particularly apt for Rehnquist to illustrate his strong connection
with historicism.
[19] Stevens' position will be discussed in greater detail later in this paper.
[20] In a footnote, Brennan notes that the Court chose to resolve the case on
the basis of Johnson's claim that the statute violates the First Amendment. The
Court believed that Johnson's conduct was "expressive;" i.e., it distinguished
Johnson's actions from a tired person dragging a flag through the mud without
intention of expressing any idea. Ibid. at 403, n. 3.
[21] Austin, Lectures on Jurisprudence or The Philosophy of Positive Law, 5th
ed. Robert Campbell, ed. (1885).
[22] "The positivist conception of science, like the pure theory of law, stands
squarely against unverifiable, metaphysical arguments." Fletcher, "Two Modes of
Legal Thought," 90 Yale Law Journal 970 (1981) at 976 n. 24. Professor Fletcher
actually is a staunch opponent of positivism, but his definitions and arguments
are useful for our purposes.
[23] See, for commentary on this, Shuman, Legal Positivism. Detroit: Wayne
State University Press, 1963.
[24] Fiss, "The Varieties of Positivism," 90 Yale Law Journal 1007 (1981) at
1007 (written in response to Fletcher, supra n. 22).
[25] Johnson, "Moral Positivism and the Internal Legality of Morals," 17
Valparaiso University Law Review 383 (1983) at 385.
[26] Fiss, supra n. 24, at 1007.
[27] Ely, Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA:
Harvard University Press, 1980. See particularly pp. 44-48 for Ely's thoughts on
judges' own value structures and their impact on the law.
[28] Fletcher, supra n. 22 at 976.
[29] Ibid. at 977.
[30] See Woodward & Armstrong, The Brethren. New York: Simon & Schuster (1979)
regarding consensuses.
[31] Koehler, "Out of the Frying Pan and Into the Fire: 'Fixing' Private Facts
Litigation the Critical Legal Studies Way," unpublished honors paper, 1991, p.
8, quoting Tushnet, "Critical Legal Studies: An Introduction to its Origins and
Underpinnings," 36 Journal of Legal Education 505 (1986) at 516.
[32] Kelman, A Guide to Critical Legal Studies. Cambridge, MA: Harvard
University Press (1987), p. 8 n. 12.
[33] See, e.g., Underwood, "Against Dichotomy," 90 Yale Law Journal 1004 (1990)
[34] Streeter, "Beyond Freedom of Speech and the Public Interest: The Relevance
of Critical Legal Studies to Communication Policy," 40 Journal of Communication
43 (1990) at 46.
[35] Ibid. at 46-47 (emphasis added).
[36] Streeter, ibid. at 43.
[37] Kennedy, "The Structure of Blackstone's Commentaries," 28 Buffalo Law
Review 205 (1979) at 212-213, quoted in Streeter, ibid. at 48.
[38] Unger, "The Critical Legal Studies Movement." 96 Harvard Law Review 563
(1983) at 602.
[39] Ibid.
[40] See Marvin, supra. n. 5 at 120.
[41] George Fletcher examines this non-neutral language in a different light;
he looks at the German words for "law:" Gesetz ("law" such as statutory law and
scientific law) and Recht (rights and unenacted principles). Fletcher supra n.
22 at 980. Although his point in examining the distinction is different than
ours, the example has illustrative value.
[42] Jacobellis v. Ohio, 378 U.S. 184 (1964).
[43] See Marvin, supra. n. 5.
[44] Ibid. at 120.
[45] This analysis is derived from Marvin's discussion, ibid. at 120-123.
[46] Ibid. at 130.
[47] Ibid. at 129; also see 135.
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