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Authorities often practice a political double standard. A Long Island housewife last year found herself in court for protesting the war by flying her flag upside down (the international signal of distress). No action was taken when an American Legion post near by flew its flag upside down to protest Government inaction over the Pueblo's capture. Last month Michael Sauter, 20, was arrested in Topeka for displaying on his car a flag decal with an overlaid peace symbol. The charges were dropped after his lawyer argued that 1) a decal is not a flag, and 2) Topeka police cars bear decals on which the flag design is defaced by the slogan: "Love It or Leave It."
During the President's visit to Indianapolis last year, the city bloomed with billboards, the names of sponsoring businesses superimposed on American flags—even though state law forbids writing on the flag. But when an Indianapolis art student hung the flag upside down in his apartment window, he was arrested and taken before a judge who declared: "It looks to me like we have before us one of those young men who want to destroy our society."
In Illinois, the state legislature recently increased the penalty for defacing or showing contempt for the flag from a one-to a five-year jail term or a fine of $1,000 to $5,000. Peter Stowe, an economics professor at Southern Illinois University, was haled into court under the law. In their car's rear window, his wife had stuck a flag decal with a peace sign where the stars should have been. Says Stowe: "I'm willing to live with people who think that the flag is sacred. But I'd appreciate it if they wouldn't lock me in jail if I don't feel the same way."
Flag Law and Protocol
The increasing number of prosecutions troubles legal experts, many of whom believe that the flag-veneration laws—including a federal measure passed two years ago—are in violation of the First Amendment's guarantee of free speech. The Supreme Court has established that symbolic political acts —such as displaying a red flag or wearing black armbands—come under First Amendment protection. Yet it has sidestepped the issue of whether laws specifically forbidding abuse of the American flag are valid. Says Burt Neuborne of the American Civil Liberties Union: "Our position is that any person attempting to express a political idea is protected by the First Amendment. The flag is entitled to no protection. Certainly the burning or mutilating of the flag will affect some people's sensibilities, but it should not be the basis for a criminal prosecution."
Unless an act of flag abuse presents an immediate danger to public safety —for example, it incites to riot—then, by Neuborne's reasoning, it represents a political statement. Says U.C.L.A. Professor Melville Nimmer: "When we have symbolic speech, and the only reason the authorities prohibit the speech is because they object to what is being said, then that is suppressing speech." In the early 1900s, some states enforced religious orthodoxy through blasphemy statutes under which a person was held criminally liable for showing indignity or irreverence toward God. In some ways the flag laws are a political analogue.