The Soiling of Old Glory by Louis P. Masur

Author:Louis P. Masur
Language: eng
Format: epub
Publisher: Bloomsbury Publishing
Published: 2010-10-14T16:00:00+00:00

Faith Ringgold, The American People Series, #18, The Flag Is Bleeding, 1967 (COURTESY FAITH RINGGOLD)

Dismayed and disgruntled by what they saw as the abuse of the flag, a very different group of Americans, construction workers, rioted on May 8, 1970. Wearing flag decals on their hard hats, and waving Old Glory in the air, they marched to Wall Street to break up a student anti-war demonstration. The construction workers started beating the protesters. According to one youth, “We came here to express our sympathy for those killed at Kent State and they attacked us with lead pipes wrapped in American flags.” From Wall Street, where they placed American flags on the statue of George Washington, the hard hats marched to City Hall, where they successfully demanded that the flag, flying at half mast to honor the four students killed in Ohio four days earlier, be raised. Those who protested the war and those who defended it, those who thought the flag was being defiled by the policies of the United States government and those who thought that to defile the flag was to be a traitor, now came adorned in red, white, and blue.

The question of the constitutionality of wearing the flag reached the Supreme Court from a case that originated in Massachusetts. In January 1970, two police officers in Leominster spotted a young man named Goguen with a 4" × 6" cloth version of the American flag sewn to his pants. When officers approached the youth, Goguen’s friends laughed. A complaint was sworn out against him for violating the contempt provision of the Massachusetts flag statute that begins “Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States.” A jury found Goguen guilty, and the Massachusetts Supreme Judicial Court affirmed the decision. The district court overturned the conviction, finding the language of the contempt portion of the statute unconstitutional. The Court of Appeals and the Supreme Court, in a 6–3 decision in Smith v. Goguen (1974), agreed. Justice Lewis Powell argued that “in a time of widely varying attitudes and tastes for displaying something as ubiquitous as the United States flag or representations of it, it could hardly be the purpose of the Massachusetts Legislature to make criminal every informal use of the flag. The statutory language under which Goguen was charged, however, fails to draw reasonably clear lines between the kinds of nonceremonial treatment that are criminal and those that are not. Due process requires that ‘all be informed as to what the State commands or forbids’ . . . Given today’s tendencies to treat the flag unceremoniously, these notice standards are not satisfied here.”

Three months after Smith v. Goguen, the Supreme Court would decide one more major flag case. In Spence v. Washington, the appellant, a college student, was appealing his conviction under an “improper use” statute for flying an American flag, with the peace symbol taped to it, upside down from his apartment. The Court, in a 6–3 decision, overturned the conviction as a clear “case of prosecution for the expression of an idea through activity.

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