5.6.3. The Midwest, 1965-Present: Freedom of Speech - Flag Desecration


Key cases:

State v. Farrell – Iowa, 1973 (209 N.W.2d 103); State v. Kasnett – Ohio, 1973 (297 N.E.2d 537); State v. Lessin – Ohio, 1993 (620 N.E.2d 72); State v. Janssen – Wisconsin, 1997 (580 N.W.2d 260)

  • Many Midwestern states enacted laws prohibiting desecration of the United States flag, a symbol of national unity, between 1890 and 1920.  Some people opposed the laws, and the Vietnam War and the 1990 Gulf War triggered a new and often bitter national debate over the laws.  Midwestern courts were active participants in the debate.
  • In Farrell, a majority of the Iowa supreme court upheld application of the state’s desecration law to an Iowan who burned the flag to protest the Vietnam War.  The court stoutly defended the need to respect the flag and concluded it was so strong a symbol that desecration automatically created a risk of violence and therefore, the state could properly criminalize acts of desecration.  A lone dissenter argued that no violence was imminent and that the majority was protecting the flag at the expense of free speech.  In Kasnett, the Ohio court took a more nuanced view and held that use of the flag in clothing did not show a degree of disrespect that could be punished:  the state had to show that disrespect was intended.
  • Two post-Gulf War cases showed the extent to which the pendulum had swung toward individualism and away from affirmation of national unity through protection of national symbols.  In Lessin, the Ohio supreme court refused to accept the Iowa court’s presumption that flag desecration was always an incitement to violence – perhaps because in the decades since Farrell, Americans had become less attached to the flag and the ideal of national unity that it represented.  In Janssen, the Wisconsin supreme court held that non-political desecrations were also protected speech under the Constitution.  The court went out of its way to praise the flag but in the end, held more deference must be given to rights of free speech than the interest of national unity.  


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Flag burning, early 1980s (courtesy Wikimedia Commons)


"The emotions of the people of this nation are so integrally linked to this symbol that its desecration in public is an invitation to violence, not because of the ideas allegedly symbolized by such act but because of the nature of the act itself." - Justice Maurice Rawlings, in Ferrell

“Restriction of free expression under the mask of preventing public disorder is a greater danger to the republic which our flag symbolizes than any act of peaceful public protest in which dissent is expressed by burning the flag.” -Justice Mark McCormick (dissent), in Farrell

“[The flag desecration controversy is] complicated by the fact that the statute concerns a genuinely sacred national symbol, acts concerning which evoke a variety of unpredictable emotional responses because the feelings, opinions and beliefs that dictate these responses are subjective, and exist only in the mind of the viewer.” - Justice Paul Brown, in Kasnett