Posted on Oct 30, 2018
What is your opinion on the use of the American Flag in art/photography being protected by the 1st Amendment?
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We are studying First Amendment protection for photographers & were just told of a case where a student in Chicago had the U.S. Flag on the ground and a notebook above it along with a photo of different versions of the flag in a frame above the notebook (see photo). You had to walk/step/stand on the flag to write in the notebook. He was sued by Chicago councilmen who said he was violating a city ordinance. They lost. The judge said his display was protected under the first amendment (this was in 1988) but if he desecrated (burned) it then he would be fined $1,000 and/or have to spend a year in jail. What are your thoughts on the judge’s decision and on using the Flag as art, clothing, etc?
American Flag
1st Amendment
Photography
Edited 6 y ago
Posted 6 y ago
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To your question I dispose any desecration of our nations colors. However, that is one of the many freedoms we served to protect. Thank you for your service.
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The judge was incorrect and you need to have your instructor bring in a First Amendment attorney, or a second year law student, to properly instruct the class on the law. In 1968 Congress passed the Federal Flag Desecration Law which made it a federal offense to burn the flag. The law also allowed for states to pass similar laws. In the Texas v. Johnson case, 491 U.S. 397 (1989) the USSC held the state and federal law was unconstitutional. The majority opinion (Brennan, Kennedy, Marshall, Blackmun and Scalia) held that the "state or federal interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression." Scalia later said at a law school speech that he was not in favor of having people burn or desecrate the flag, but "I am not a king". Thus, the judge was incorrect when he stated that had the young artist burned the flag that he would be fined and/or imprisoned.
This legal reasoning has also been used when it comes to artwork, no matter what the medium of artwork. And it is also used in "non-political" speech cases, wherein someone wears a flag bikini or stands on a flag beach towel.
Personally, I find a flag bikini/speedo/etc. rather disgusting as vaginal, penile and anal detritus ends up on the "flag". I have my father's folded flag from his funeral and I will have my husband's folded flag from his funeral (unless I die first). My husband folded those flags over caskets for four months prior to going to Nam. Yet, I also remember that other nations have imprisoned their own people for "defiling" that nation's flag. That I do not agree with in any way, shape or form. Those types of laws are for dictatorships and nationalists types of government which are abhorrent. Thus I will defend any other person's use of the flag, whether for political speech or not, because the Constitution so demands. And I find the Constitution to be much more relevant than the flag.
This legal reasoning has also been used when it comes to artwork, no matter what the medium of artwork. And it is also used in "non-political" speech cases, wherein someone wears a flag bikini or stands on a flag beach towel.
Personally, I find a flag bikini/speedo/etc. rather disgusting as vaginal, penile and anal detritus ends up on the "flag". I have my father's folded flag from his funeral and I will have my husband's folded flag from his funeral (unless I die first). My husband folded those flags over caskets for four months prior to going to Nam. Yet, I also remember that other nations have imprisoned their own people for "defiling" that nation's flag. That I do not agree with in any way, shape or form. Those types of laws are for dictatorships and nationalists types of government which are abhorrent. Thus I will defend any other person's use of the flag, whether for political speech or not, because the Constitution so demands. And I find the Constitution to be much more relevant than the flag.
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Patricia Overmeyer
Capt Gregory Prickett - Ok, you are right about the judge's decision at the time. However, if this is what is being taught as First Amendment law then it is entirely incorrect as to the here and now for artists, etc. From reading the post, it was stated that they are being taught First Amendment law and this case is being used. I can't tell if SPC Siegars was stating that they are being taught this is what the law is now or not. So that was speculation on my part.
Unfortunately, I've heard a number of people use that same case (even though they aren't lawyers but they know this case in Chicago that says...) to state that one can be held criminally liable for burning the flag. For some reason that case is glommed onto over the rest of the cases since. Perhaps because they like the criminal liability for burning the flag or perhaps because they don't know the rest of the story? Who knows. I never ask where they get their information. Probably from Abe Lincoln on the internet.
I hope we never have a constitutional amendment that protects the flag. I still remember my father discussing the reason why no one should be put in jail for "disrespecting" the flag. And I remember a local neighbor in our small town talking to us in our social studies class about "disrespecting" the flag. My dad was a WWII veteran and while desecrating the flag annoyed him to no end, passing a law to criminalize it really riled his feathers. Our local neighbor had the numbers tattooed on his arm from his time in the concentration camp. Made an indelible impression on my young mind as to what was truly patriotic and what was truly pathetic patriotism.
Unfortunately, I've heard a number of people use that same case (even though they aren't lawyers but they know this case in Chicago that says...) to state that one can be held criminally liable for burning the flag. For some reason that case is glommed onto over the rest of the cases since. Perhaps because they like the criminal liability for burning the flag or perhaps because they don't know the rest of the story? Who knows. I never ask where they get their information. Probably from Abe Lincoln on the internet.
I hope we never have a constitutional amendment that protects the flag. I still remember my father discussing the reason why no one should be put in jail for "disrespecting" the flag. And I remember a local neighbor in our small town talking to us in our social studies class about "disrespecting" the flag. My dad was a WWII veteran and while desecrating the flag annoyed him to no end, passing a law to criminalize it really riled his feathers. Our local neighbor had the numbers tattooed on his arm from his time in the concentration camp. Made an indelible impression on my young mind as to what was truly patriotic and what was truly pathetic patriotism.
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Patricia Overmeyer
Capt Gregory Prickett - AAAAUUUUGGGGGHHHH!!!! I used to do criminal defense and that batshit thinking just drove me nuts. And for some reason, Arizona seems to attract a lot of those people. My other favorite was the motion filed by my client citing a twenty page USSC opinion that all boiled down to one sentence in the middle of a paragraph for the holding. "Yes your honor, my client filed that motion and he is going to argue it." I never minded being appointed to represent people, but some of them should have been charged with one count of criminal stupidity.
I do family law now, so I'm seeing the filings of internet sleuths who have decided that Lujan v. Defenders of Wildlife holds that they don't have to pay child support, the court can't force them to pay child support unless they have a trial by jury since the 7th Amendment guarantees that right in civil cases involving more than $20.00, blah, blah, blah. I don't even bother to file a response to the blather.
I do family law now, so I'm seeing the filings of internet sleuths who have decided that Lujan v. Defenders of Wildlife holds that they don't have to pay child support, the court can't force them to pay child support unless they have a trial by jury since the 7th Amendment guarantees that right in civil cases involving more than $20.00, blah, blah, blah. I don't even bother to file a response to the blather.
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SPC James Seigars
Capt Prickett & Ms. Overmeyer: We are only getting to study about First Amendment Law as it pertains to Photography for this week, so I am hoping that the instructor (who is also a lawyer) will give us more up to date information as the week progresses. I personally don’t like people desecrating the Flag (I spent 2.5 years on Honor Guard and 2.5 years on Funeral Detail so I have had plenty of experience with carrying it & folding it at funerals), but I also respect everyone’s right to free speech which I spent over 20 years defending.
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Patricia Overmeyer
SPC James Seigars - I hope you do get more up to date information as the class progresses. The other cases which Capt Prickett and I discussed still apply to photography/art/etc. The one issue which still is perplexing though is rather or not it is wise to have the military determine what photographers are allowed to photograph in war zones. That was a huge First Amendment debate during the first Gulf War in the early 90s as the military had "embedded reporters" and directed what they were and were not allowed to photograph. Should we, the public, not be allowed to see the photographs of the caskets arriving at Dover, wounded soldiers, etc. as we saw during Viet Nam? The military banned those types of photographs with the "embedded reporters". Who owns the rights to those photographs, the military or the photographer? Is the military determining what is considered PC for public consumption? All good questions to toss around in your class and the law schools.
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