The "penalty enhancement" of flag desecration

As a follow up to my general examination of penalty enhancements, let's take a detailed look at flag desecration. I consider this a penalty enhancement, because the laws that have been passed against flags have not been passed against other pieces of cloth.

about.com identifies two reasons why flag desecration laws were passed at the state level after the Civil War:

In the years immediately following the Civil War, many felt that the trademark value of the American flag was threatened on at least two fronts: by many white Southerners' preference for the Confederate flag, and by business' tendency to use the American flag as a standard advertising logo. To respond to this perceived threat, 48 states passed laws banning flag desecration.

One of the first Supreme Court decisions on the matter, Halter v. Nebraska (1907), was actually a decision related to Federal vs. states' rights.

In 1903, Nebraska made it a crime to “sell, expose for sale, or have in possession for sale, any article of merchandise upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States.”...

Halter, owner of a bottling company, was charged in 1905 with selling a bottle of beer on which was printed an American flag for the purpose of advertisement....

Halter argued that the law violated the principle of federalism: the American flag is designated by the national government and represents the whole of America; therefore, the authority to regulate use of the flag lies with the federal government rather than with the states.

In this case the Supreme Court ruled 8-1 in favor of Halter's conviction, but by 1969, Street v. New York resulted in a different outcome:

Sydney Street, upon hearing of the shooting of civil rights leader James Meredith in Mississippi, took a 48-star American flag which he owned and burned it at a local intersection. A police officer who saw the burning flag arrested Street after he admitted to having set it on fire. Street was charged with violating a New York law which made it a crime to publicly mutilate or “publicly defy ... or cast contempt upon [any American flag] either by words or act.”

When the Supreme Court ruled for Street, Justice Harlan

...found that the state could not suppress speech in order to protect “the sensibilities of passers-by who might be shocked by appellant’s words about the American flag” or to force Street “regardless of the impact of his words upon others, [to show] proper respect for our national emblem.” Therefore, the prohibition on “words” that “publicly defy” or “cast contempt” on the American flag was found unconstitutional....

More here.

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