Stars and Stripes and the Union Jack

On Flag Burning and the Pleasures of London

If there is any issue that really defines whether an American believes in the First Amendment, it is the question of flag burning. Should we punish that most heinous of acts, the desecration of the Stars and Stripes? Public opinion leans on the side of imprisonment. The Supreme Court and the Constitution say the First Amendment protects it, notwithstanding its unpatriotic nature. Now, not at all surprisingly, Donald Trump has entered the fray.

You may recall that last month I wrote this column on the dangers which a new Trump Administration would pose to First Amendment rights. But because it hadn’t come up in quite a while, I somehow skipped past the flag burning issue. As Trump’s campaign becomes more rocky, an issue like this inevitably comes to the fore. Just a few days ago, at a meeting of the National Guard Association in Detroit (as an aside, how can the Trump campaign criticize Gov. Walz’s over 20 year service in the Guard, when Trump himself clearly was a draft dodger who managed to get out of military service altogether?)  Trump said this:

“You burn an American flag, you go to jail for one year. Gotta do it. You gotta do it. They say ‘Sir, that’s unconstitutional.’ We’ll make it constitutional.”

Just as with his bloviating about overturning New York Times v. Sullivan, the Republican candidate didn’t say how he planned to reverse Supreme Court precedent. But the unfortunate fact is that the Supreme Court barely came out the right way. In 1989, by a slim 5-4 margin in Texas v. Johnson, it held that flag burning fell under First Amendment protections of free speech. The majority, Justice Brennan writing the opinion joined by Blackmun, Kennedy, Marshall and Scalia, was quite clear:

“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 and disagreeable.”

Whether there are five votes on this Court for that bedrock principle is unclear. As far as I know, none of those five brave Justices are still on the Court. But the bigger problem is that politically this is a great issue for Trump to run with. In the last poll I saw, of 6,000 Americans in 2020, 49% felt it should be illegal to burn the flag, while only 34% believed it should be legal. In another survey, only 28% of the public agreed with the Court that punishing flag burning was unconstitutional, while 71% said they favored a constitutional amendment prohibiting it. And those of a certain age might remember that George Bush 41, otherwise a rather principled leader, made hay in his 1992 campaign by loudly supporting legislation which would punish flag burning, notwithstanding the Supreme Court’s decision.  

Kamala Harris, before Trump’s latest salvo, has taken a more nuanced position. She condemned the burning of the flag at a protest about US handling of the war between Israel and Hamas, but did not call for the act to be barred or punished, saying the flag should never be desecrated in that way. My only hope is that this issue not become terribly visible since it’s hard to see how it won’t help Trump and edge him closer to the White House – and to evisceration of the First Amendment principles we hold dear.

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As summer wanes, a young lawyer’s thoughts turn to the MLRC’s London Conference. But it’s fully understandable if your mind dwells not on the programming, which will be terrific, but on London itself – and what makes that City as spectacular as it is. It’s somewhere between unique, charming and exciting, at least on a par with Paris – which had its moment in the sun this summer – and New York, but more on that comparison later. (I actually think Venice is the grandest of cities, but it is so different and singular it doesn’t really belong in this grouping.)

I wrote a few weeks ago in my email blast announcing registration was open that London is “a city with a storied history, classic architecture, a plethora of fascinating tourist sites from the Churchill War Rooms to the Tate Modern, overflowing pubs and restaurants, and a sky high energy level and availability of activities from inexpensive theatre in the West End to Premier League football games all over town.” But that doesn’t fully explain what makes London so special.

If you pardon the detour, I thought that maybe my experiences there might give some sort of explanation. I first saw London with my parents when I was 12. Even as a New Yorker, I was enraptured by the red double-decker buses and learning that the drivers of those black cabs “for hire” had to have training for three years and learn every street in the City before they could take to the streets. I remember my dad dragging us to Speakers Corner in Hyde Park on a Sunday morning, but all we heard was the familiar rantings of religious fanatics, conspiracy theorists and anti-government extremists.

My next visit was as a Eurail carrying college student on summer vacation, where the lasting memory was sleepily going from Heathrow to Trafalgar Square to get one’s bearings and hang out, but on the hottest day London had seen in a decade, I spent hours trying to get a cold Coke – an impossible feat as I quickly learned the Brits didn’t put ice in their drinks. My next trip was with my then-girlfriend, now-wife Annie. Late in the afternoon of our first day there, we took an introductory walk, and saw a crowd gathering in front of a theater. We joined and, totally accidentally, saw Ingrid Bergman starring in what I have to imagine was her last play ever.

Some visits for legal gatherings followed. On one occasion I had dinner with Barbara Wall –  and the ABA Forum Boca Conference, still going strong some 30 years later, came out of that meal. On another trip, I got fed up upon arrival with hanging out in a hotel lobby waiting for my room to be cleared, left all my fellow ABAers, and took to the Tube and went off to get a scalped ticket to a West Ham-ManU soccer game, at that time England’s two premier teams, and saw a thrilling 3-2 game enhanced by my neighbor’s hugging and drooling all over me whenever the home team scored. The next night, at a reception at an elegant club on Pall Mall, I proudly told a stodgy host of my adventure. His most unfavorable response was that the only sports Englishmen follow are rugby and the Oxford-Cambridge boat race.

Invited to speak before a British-American group about the two countries’ Supreme Courts, I strangely ended up at a play about the Enron scandal, and then the next day walked from the National Portrait Gallery into a church where I heard some music playing, and happed on to a rehearsal concert of Beethoven’s Ninth by the vaunted St. Martin’s in the Fields orchestra. Later, an MLRC reception in the Parliament building, which saw us drinking champagne while overlooking the Thames wasn’t too shabby either. And on a recent family trip, going to the Royal Albert Hall, beautifully adorned in Christmas decorations, to hear a Christmas concert was pretty spectacular as well.

But none of these experiences answers the question I have posed to myself. Why do so many MLRC members who come to our Conference find London so special and so attractive? And this includes people like me, from New York; after all, we, too, live in a big, pulsating city, with tons of attractions and activities, teeming sidewalks and bars, and an exciting energy level. The only answer I can come up with is that although the activity and energy levels are similar, one travels in London against the backdrop of its far richer history, its more elegant architecture and layout, and its somehow more sophisticated culture – although I wonder if that’s just illusory and a consequence of their more regal accents. (This is hardly empirical evidence, but I remember as a kid watching The Dating Game, a forerunner to today’s reality tv shows, where a young woman had to choose her date from among three young men whom she could question, but not see. If one of the three had a British accent, he always was the one picked.)

In a possibly remote sense, the differences between the two cities are reflected, taking a timely example, in the stark contrast between the US Open, played in New York for the last couple of weeks, and Wimbledon. The New York tourney is played on a hard cement-like court amidst newly built giant but unattractive stadiums; Wimbledon is played on a manicured lawn in a Centre Court which appears unchanged in half a century. At Flushing Meadows, the crowd is a noisy mess and going there (I was a ballboy at the tournament while in high school) resembles a bacchanalia with fans screaming between serves;. at Wimbledon orderly  spectators queue up for same-day tickets, and sit quietly, politely applauding at the end of a well-played point. US Open players wear often clashing multicolored outfits, with some men in tank tops; at Wimbeldon everyone wears white. In New York attention is paid to rap stars and football players who attend;. at Wimbledon, eyes are focused on the royal box and on whether the Queen or Princess is there. The Open’s big seller is a $23 vodka drink named Honey Deuce; Wimbledon has long been known for its strawberries and cream. Whatever one’s preference, there certainly is a large difference – and the differences are mirrored in the two cities well beyond the tennis environment.

So why do we somehow get more of a thrill walking around the West End than Times Square or strolling from Piccadilly Circus to Trafalgar Square than down Fifth Avenue from the Plaza to the New York Public Library? I believe that the richer history of London is a main reason. After all, Peter Minuit’s purchase of New Amsterdam (the forerunner of New York) for the Dutch for $24 was just 400 years ago, and the New York inauguration of George Washington as our first President was in 1789. That range of years was perhaps in about the fourth inning of British history. The elegance of the architecture, the seemingly refined accents, the orderliness and queuing of the people all might have something to do with it. But, in any case, a week in London, including our timely and engaging Conference, is a week you will very much savor.

George Freeman is executive director of the MLRC. All opinions are his and not those of the organization. Comments welcome at gfreeman@medialaw.org.