Flag Desecration

State v. Janssen

In our second case State v. Janssen (1998),1 the Wisconsin Supreme Court ruled that the Wisconsin flag protection law, first enacted in 1901,2 and modified or updated four times in relatively minor ways,3 was unconstitutional, null and void, unenforceable. It actually was a legally easy and unanimous decision by the court, even though the judges themselves morally disapproved of the defendant’s actions and they knew many citizens would disagree.4 Now why would the judges unanimously do that—go against their own moral beliefs to strike down a long-standing law accepted by most people? Let’s review the case:

Vincent R. Biskupic, Outagamie County District Attorney, argued in court on behalf of the State of Wisconsin: One night in early June, 1996, Matthew Janssen and a few friends cut through the Reid Municipal Golf Course, decided to steal its flag, and then discarded it later. Course officials put up a new flag. On June 9, Janssen and his friends cut through the golf course again and took down the flag. Janssen defecated on it and left it on the steps of the clubhouse. Course officials cleaned the flag and ran it back up the flagpole. On June 26, Janssen and friends returned to the golf course and stole the flag. This time they left a note:

Golf Course Rich Fucks: When are you dumb fucks going to learn? We stole you’re [sic] first flag and burnt [sic] it, then we used your second flag for a shit-rag and left it on your doorstep with a piece [sic] of shit. The ANARCHIST PLATOON HAS INVADED Appleton and so long as you put flags up were [sic] going to burn them you yuppie fucks. Shove you’re [sic] cluB [sic] up your ass.”5

Biskupic concludes: Wisconsin Statutes §946.05 (1995-96) provides: “(1) Whoever intentionally and publicly mutilates, defiles or casts contempt upon the flag is guilty of a Class E felony. (2) In this section ‘flag’ means anything which is or purports to be the Stars and Stripes, the United States shield, the United States coat of arms, the Wisconsin state flag, or a copy, picture, or representation of any of them.” Through the actions described above, Mr. Janssen clearly did intentionally and publicly defile and cast contempt upon the flag. Therefore, he is guilty of a Class E felony.

Through his lawyers, Matthew Janssen, the accused, claimed:6 I admit to all of the actions of which I am accused. However, I should not be convicted of flag desecration because it is a bad law. It is bad because it is too broad, that is, it makes illegal speech that the United States Supreme Court says is legal, and therefore it violates the constitutional guarantee of freedom of speech.7

Justice Jon P. Wilcox wrote the Court’s decision:8 Although Janssen’s conduct is “repugnant and completely devoid of any social value,” a “slap in the face” to many citizens, especially those who have fought for our country, and a “glowing ember of frustration in our hearts and minds,” we are not justified “in writing our private notions of policy into the Constitution, no matter how deeply we may cherish them or how mischievous we may deem their disregard.” We are compelled by legal precedent to rule the Wisconsin statute overbroad on its face and therefore unconstitutional.

Wilcox continues: In Street v. New York 394 U.S. 576 (1969), the U.S. Supreme Court refused to enforce the New York flag desecration law that prohibited any words or acts that “publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon [the flag].”9 In Texas v. Johnson 491 U.S. 397 (1989), the U.S. Supreme Court ruled unconstitutional the Texas flag desecration law making it a misdemeanor to “deface, damage, or otherwise physically mistreat” a national flag “in a way that the actor knows will seriously offend one or more persons likely to observe or discover his actions.”10 One year later in United States v. Eichman 496 U.S. 310 (1990), the Supreme Court reaffirmed this decision in striking down the conviction of a man for flag burning under the Flag Protection Act of 1989 that provided for fines and imprisonment for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.”11 The Wisconsin law, as it is written, suffers from the same flaws that were present in Johnson and Eichman. “Government may create national symbols, promote them, and encourage their respectful treatment. But [they may not] proscribe expressive conduct because of its likely communicative impact.”12

Wilcox continues: Even if we limit the Wisconsin law to cases of “defilement” as the state prosecutors have requested the law still fails constitutional tests. It would make punishable a college student’s protest against our government’s foreign policy by affixing a peace symbol to the flag with black removable tape. But the U.S. Supreme Court has ruled in Spence v. Washington 418 U.S. 405 (1974) that this act is a constitutional exercise of free speech. It would also make punishable an artist who included an artistically altered flag in a display protesting war. But this too has been ruled a lawful expression of speech in United States ex. rel. Radich v. Criminal Court of New York City 385 F.Supp. 165 (1974). “If one were to splatter the flag with oil during a demonstration against the Persian Gulf War—a clear act of defilement under any interpretation of the term—we fail to see how this person could be prosecuted constitutionally…when [a] fellow protestor who chose to burn a flag could not [be prosecuted constitutionally].”13 The law is clearly an attempt to ban speech based exclusively on its offense to certain other individuals. And this is exactly what the First Amendment does not countenance. “If there is any 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 or disagreeable.”14

Wilcox concludes: Wisc. Stat. §946.05 (1) is overbroad and therefore unconstitutional on its face. Because the state has not satisfied its burden of proving that a limiting construction or severance of the state’s terms can preserve the statute in a constitutional form, [it] must be invalidated in its entirety. “Today we share in the thoughtful and well-expressed sentiments of Justice Kennedy: ‘The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”15

Wow! A nearly one hundred year old law was thrown out because the justices of the state Supreme Court thought it could be used by law enforcement to get people who should not be gotten. How did Wisconsinites react?

Notes

1 State of Wisconsin v. Matthew Jansen, 219 Wis. 2d 362, 580 N.W. 2d 260 (1998).

2 States preceding Wisconsin in protecting the flag were: Illinois, Pennsylvania and South Dakota (1897); Vermont (1898); California, Massachusetts, Minnesota, New Hampshire, and New York (1899); Iowa (1900). Colorado, Indiana, Michigan, North Dakota and Oregon also passed laws in 1901. See Note, “Flag Burning, Flag Waving and the Law,” 4 Valparaiso University Law Review 345 (1970). The first federal flag law, which applied only to the District of Columbia, was enacted in 1917. The first federal legislation that applied nationally did not appear until 1968.

3 In 1919, the law was repealed and rewritten to mirror the Uniform Flag Law approved in 1917 by the National Conference of Commissioners on Uniform State Laws. In 1925 and 1955 it was renumbered. In 1967 the penalty for flag desecration was increased from from a misdemeanor to a felony. See Janssen at 383-4, and footnote 15.

4 For example, a scientific survey on First Amendment issues of over 600 Wisconsin residents on First Amendment issues in 2004 asked, “Should people be punished for burning or defacing the American flag as a political statement?” 60% responded “yes,” 33% responded “no,” and 7% had no definite opinion. See The State of the First Amendment in Wisconsin (2004), Franklin, T.E., et.al., UW-Stout Department of Psychology, Menomonie, WI 54751 (republished with permission on this website).

5 Janssen, at ¶9.

6 Janssen was an 18 year-old Appleton punk rock band member and self-described anarchist. His legal defense was provided by Eugene Bartman and Brian G. Figy of the Office of the State Public Defender (Appleton). Bartman offered the oral arguments. Janssen was convicted of theft and sentenced to nine months in jail. Only his conviction for flag desecration was contested. See Milwaukee Journal Sentinel, July 3, 1998, pg. 1.

7 Janssen’s lawyers presented two further arguments: (1) his action was an expression of opinion protected by the First Amendment’s guarantee of freedom of speech and (2) this law is unconstitutional since it is too vague. I omit these for present purposes since the court declined to rule on the merits of either of these. See Janssen, note 6.

8 State of Wisconsin v. Matthew C. Janssen, 219 Wis. 2d 362; 580 N.W. 2d 260; 1998 Wisc. Lexis 102 (1998). The case was first heard in County Court, appealed to Circuit Court and Court of Appeals [State v. Janssen 213 Wis. 2d 471, 570 N.W. 2d 746 (Ct. App. 1997)] before reaching the state Supreme Court. Since the state Supreme Court decision takes precedence and the lower level cases add no significant material, I refer only to the highest state court decision.

9 The case involved a man who burned a flag at a city intersection and shouted “we don’t need no damn flag” and “if they let that happen to Meredith we don’t need an American flag,” to protest the murder of civil rights activist James Meredith.

10 The case involved a man who participated and marched in a political protest against President Reagan. When the protestors arrived at the Dallas City Hall the man doused the flag with kerosene and set it on fire.

11 The day the Flag Protection Act of 1989 went into effect, several demonstrations protesting the law were held around the country, two of which involved arrests for flag burning. Four people were arrested in Seattle, Washington for burning a flag outside a U.S. Post Office shortly after midnight, October 28, 1989 moments after the law took effect. Four more protesters, later called the “D.C. 4,” were arrested for burning three flags outside the U.S. Capital building in Washington, D.C. Shawn Eichman and Dread Scott were revolutionary artists. David Blaylock was a Vietnam War Veteran. And the fourth—not arrested but who joined in the legal proceedings as an un-indicted coconspirator, was Gregory Johnson of Texas v. Johnson infamy.

12 Eichman at 318.

13 Janssen at ¶43.

14 Janssen at ¶47, quoting Johnson at 414 and West Virginia Board of Education v. Barnette 319 U.S. 624 (1943) at 642.

15 Janssen at ¶53, quoting United States Supreme Court Justice Anthony Kennedy in Johnson at 420-421.