Celebrating Our Flag, Flag Day 2019
Government buildings annually fly the flag of the United States on June 14 to commemorate the day in 1777 that the second Continental Congress adopted the flag and resolved “that the flag of the United States be thirteen stripes, alternate red and white: that the union be thirteen stars, white in a blue field, representing a new constellation.” The national observance of Flag Day was made official on August 3, 1949 after years of unofficial observances and sporadic presidential proclamations recognizing the day.
Flag Day presidential proclamations, both before and after 1949, have often reflected the significant events of the day. In proclaiming Flag Day in 1945, President Harry Truman remarked, “Our Flag has accompanied our fighting men on a hundred battlefields. It flies beyond the seas over the friendly lands our arms have freed, and over the hostile countries our arms have conquered. Our Flag will be planted in the heart of the empire of our last remaining enemy.” President George W. Bush’s 2002 proclamation stated, “The flag that inspired Francis Scott Key to write our National Anthem 188 years ago still energizes and inspires the American spirit. Since September 11, we have seen our Nation’s flag appear everywhere — on cars and clothing, houses and hard hats — showing our country’s commitment to always remember those who lost their lives and to remain unremitting in the pursuit of justice.”
The United States flag as a symbol and a tool of expression ignites much emotion and debate in America. The United States Supreme Court has not been immune to similar sentiment. In the closely divided flag desecration cases Texas v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 496 U.S. 310 (1990), identical majorities in both cases consisted of a mix of liberal and conservative justices. The court ruled that flag burning is protected symbolic speech. Justice Antonin Scalia sided with the majority in both cases, while Justice William Rehnquist delivered a passionate dissent in Texas v. Johnson, writing, “The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence, regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”
While the Texas v. Johnson and U.S v. Eichman cases appear to have settled the First Amendment right to political expression as it relates to the American flag, controversy surrounding the flag and symbolic counter-speech has emerged in the last two decades. In the wake of the terrorist attacks of September 11, 2001, public displays of patriotism such as flag flying and the singing of the national anthem found a resurgence in the daily lives of Americans. In 2003, the 9th Circuit Court of Appeals held in Brown v. Cal. Dep’t of Transp., 321 F.3d 1217 (9th Cir. 2003) that a California Department of Transportation policy allowing the display of U.S. flags on state highway overpasses while prohibiting the same for anti-war banners constituted unreasonable viewpoint discrimination. That same year, two women college basketball players, Toni Smith and Deidra Chatman, turned their backs to the flag during the national anthem in an anti-war protest, a form of symbolic counter-speech that was not a new phenomenon and one that is very familiar to us today.
This year, as in years past, we are asked as Americans to celebrate the flag and what it stands for. President Trump’s Proclamation on Flag Day and National Flag Week, 2019 proclaims “We fly Old Glory from government buildings, schools, city halls, police and fire stations, stores, offices, and our front porches. Wherever Americans are gathered — sporting events, places of worship, parades, and rallies — our flag waves proudly, representing the enduring spirit of our country.” (SC)
