In June of 1989 the Supreme Court ruled that flag-burning is “expressive conduct” protected by the First Amendment. Despite Congressional efforts to overrule that case by constitutional amendment, most recently last week, it remains the law today.
In August of that year I was visiting an Elderhostel camp in Maine, and the owner asked if I would like to speak to the “campers” about a legal subject. He suggested estate planning, but I told him I knew nothing about wills or trusts and offered to talk about flag burning instead. He didn’t look too happy but acquiesced. So, that evening, I explained the case to 30 or so senior citizens, many of whom remained unconvinced by the Court’s reasoning.
Over the following Thanksgiving weekend, my professor friend and his son came to visit. The father had marched at Selma and protested the Vietnam War. The son’s patriotism was of a different sort – he had graduated from a military high school and was attending a prominent military college at the time of their visit.
I told them about my visit to Maine and the subject of my talk. The son was not just unconvinced; he was outraged that the Supreme Court could ever make such a decision. I said something about the Constitution and freedom of speech, and then saw the two of them looking at each other in a way that told me I had stumbled onto something. And I had.
It seems that just a few weeks before, the young soldier-to-be had visited his father’s office on campus. He looked out the window, saw smoke and was shocked to see students burning a flag. How could anyone do such a thing? He ran from the office, broke into the fire extinguisher case in the hallway, and ran down three flights of stairs. When he got there, alas, the fire was out and the students were gone. The campus police took the extinguisher and cited him for breaking the glass – since there was no “emergency.”
As the story came out at my kitchen table, the son sat quietly, his head bowed, while the father told me that he had not stood up for his son but, rather, had been embarrassed by his behavior. I pointed out that expressive conduct can take more than one form. They both fell silent, and then the father got up, kissed his son, and said he was proud of him.
The next week I sent them both a copy of the Supreme Court’s opinion. I don’t remember the professor’s response, but I will never forget the son’s. He sent me a kind note, thanked me for the opinion and enclosed his own gift in return … an American flag.