June 21, 1989, proved a fateful, ominous portent for First Amendment jurisprudence: the Supreme Court decided Texas v. Johnson. The first bill came due in September 2016, when NFL quarterback you-know-who knelt and bowed his head during the playing of the national anthem. But the full bill came due May 31, 2020, when vandals spray-painted treasured national monuments, including the Lincoln Memorial, erected to honor the man generally considered America’s greatest president for having led America through its gravest domestic crisis, the Civil War. Lincoln’s 1863 Gettysburg Address is generally viewed as the greatest speech in American history, and his two inaugural addresses among the greatest of their lineage.
Americans — at least before the Left largely took over the education of K-12 and our universities — learned at least the closings. From the Gettysburg Address:
that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, and for the people, shall not perish from the earth.
From Honest Abe’s First Inaugural, they learned, at minimum, the closing:
We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break, our bonds of affection. The mystic chords of memory, stretching from every battle-field and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union when again touched, as surely they will be, by the better angels of our nature.
And from his final message to his countrymen, the Second Inaugural:
With malice toward none with charity for all with firmness in the right as God gives us to see the right let us strive on to finish the work we are in to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan — to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.
Compare the above to the disgusting images of vandalism on the National Mall on May 31, 2020, and see how low America has sunk. The Supreme Court’s Texas v. Johnson decision 21 years ago laid the foundation for 2020’s vandalism.
The Johnson Case. The case arose when protesters burned an American flag in front of the 1984 Republican national convention. A jury convicted the flag-burner of desecration of a venerated national symbol. Two appeals courts upheld the verdict, but the highest state appeals court reversed, finding that the statute punished permissible conduct, and that breaches of the peace could be prosecuted without impinging on First Amendment rights in the event of a genuine threat of violence.
The Supreme Court took the case and, 5-4, upheld the state court ruling. Justice William Brennan’s majority opinion noted that Texas did not prohibit all destruction of the flag, and hence prosecuting Johnson’s act was viewpoint discrimination, prohibited by the First Amendment. Liberal justices Thurgood Marshall and Harry Blackmun, conservative justice Antonin Scalia, and swing justice Anthony Kennedy joined Brennan to forge a narrow majority. (Kennedy also filed a concurring opinion.) The four dissenters were conservative William Rehnquist, swing justices Byron White and Sandra Day O’Connor, and liberal justice John Paul Stevens.
For our purposes, note that the split on the Court was not along ideological lines. The opinions go through countless cases dating back to 1917, whose details are, thankfully, beyond the scope of this article. (Of historical interest, both the majority and dissenters cited legendary Justice Oliver Wendell Holmes in support of their arguments.) Three quotations from the various opinions summarize what is pertinent to my thesis.
From Justice Brennan’s majority opinion:
We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown man will change our Nation’s attitude towards its flag.
From Chief Justice Rehnquist’s dissent, which focused on the unique role the flag has played in American history from the Founding to the present:
In holding this Texas statute unconstitutional, the Court ignores Justice Holmes’ familiar aphorism that “a page of history is worth a volume of logic.”
From Justice Stevens’s prophetic dissent, which focused on the methods chosen by the defendant — desecration of a revered national symbol — of ideas already conveyed by speech that was not prosecuted by the authorities:
The Court is therefore quite wrong in blandly asserting that respondent “was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.”
Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spraypaint — or perhaps convey with a motion picture projector — his message of dissatisfaction on the facade of the Lincoln Memorial, there would be no question about the power of the Government to prohibit his means of expression. The prohibition would be supported by the legitimate interest in preserving the quality of an important national asset. Though the asset at stake in this case is intangible, given its unique value, the same interest supports a prohibition on the desecration of the American flag.
But there was an intermediate step taken before 2020, in 2016.
Taking a Knee: Excusing Disrespect. The 2016 controversy was settled not in court, but by the NFL. Citing the Johnson case, NFL Commissioner Roger Goodell endorsed the right of the quarterback to disrespect the flag during the playing of the national anthem just before the start of the game. In fact, on three grounds, the 1989 case is, as lawyers say, “distinguishable” from the NFL case. They are, in a nutshell: (a) company time, (b) captive audience, and (c) viewpoint discrimination. The quarterback could have protested on his lawn or gotten a permit to protest in public during his time off the job. As to captive audience, spectators offended by his acts could not, as a practical matter, during the 90 seconds it takes to run through the song once — typically, with a reprise chorus, it runs about three minutes — get up from their seat, step over or around others in the stands, or get to the exit so as not to hear it. Thus, though audience members were technically free to leave, the time frame was too short to effectively exercise the choice. As to viewpoint discrimination, Johnson was allowed to speak his sentiments, with his desecration adding, as Justice Stevens noted, nothing to the content of his ideas. But NFL players had been banned from displaying Christian religious sentiments or insignia showing support for Dallas police officers killed in the line of duty. Thus, the NFL engaged in blatant viewpoint discrimination.
And what, then, did the quarterback accomplish with his stunt? Only this: He transformed into a partisan issue what for over a century had evolved into a tradition — entirely bipartisan — of standing for the anthem, as a sign of respect for those who gave their lives so that the rest of us could enjoy freedom and prosperity.
Speaking of the NFL, two Super Bowl superstar renditions are truly iconic: Whitney Houston’s 1991 rendition (3:36) at Super Bowl XXV, and Renée Fleming’s 2014 rendition (2:37) at Super Bowl XLVIII. All this was trashed by a stance taken by one quarterback but endorsed by — who else? — today’s mainstream leftist media.
Vandalizing Memorials: Sanctifying Desecration. And now we have arrived at the moment Justice Stevens feared. Under the “broken windows” theory of crime, low-level offenses signify an acceptance of disorder by the authorities. Graffiti is one form of this phenomenon. The result is an increase in major crimes, as such broken windows signal that the law will not be meaningfully enforced. Anti-cop Rembrandts manqués are now being invited to spraypaint their slogans on city streets. Thus a 21st-century replay of the 455 A.D. sack of Rome by the original Vandals — consensually arranged between invader and victim (unlike the 410 A.D. sack of Rome by Alaric the Visigoth, noted for consequent rapine and plunder).
So now, what was in 2016 contemptible disrespect of our flag has morphed to official de facto acquiescence in barbarian desecration of a nationally revered memorial. As Robert Stacy McCain writes in The American Spectator,
Calling attention to facts (e.g., the nonexistence of a police brutality epidemic) makes you racist, because facts disturb the fantasy land of liberal belief. But the cost of preserving such fantasies may be the destruction of our civilization. RealClearPolitics columnist Frank Miele saw troubling signs when “mob violence replaced police as the standard of authority” the past week:
“When you saw white people taking a knee to prostrate themselves before looters and to renounce their “white privilege,” you also saw parallels to Mao’s Cultural Revolution and Hitler’s Kristallnacht, the Night of Broken Glass.
“The Cultural Revolution began with an attack on the old order, the old “privilege” represented by shop owners and college professors. To avoid the mob’s rage, the victims were forced to humiliate themselves publicly and to utter self-denunciations, to confess their “crimes” against the mob’s ideology. But there was no escaping the demented wrath of the self-anointed protectors of virtue.”
For those of us who live far from the urban mobs, it is tempting just to turn off our TVs and laugh at the madness destroying America’s cities, but the “demented wrath” of the mobs won’t be satisfied merely with looting and burning their own communities. They crave power — total power over the entire country — and they don’t intend to let cops or anyone else stop them from getting what they crave. Having failed to “fundamentally transform” America, now they are ready to destroy it.
Which bring us to a landmark 1949 Supreme Court free speech case, also prophetic: Terminiello v. City of Chicago. A right-wing hate-merchant preacher gave a fiery speech in which he used strong derogatory language to denounce Jews, blacks, and anyone else not just like him. He was convicted of disorderly conduct under a broadly worded breach of peace law that included as punishable speech that “stirred people to anger, invited public dispute, or brought about a condition of unrest.” These latter grounds were clearly out of step with First Amendment jurisprudence, while other criteria in the law punished incitement to riot. The majority mechanically applied a rule of law that a general verdict — one that is an up-or-down guilty or not guilty, without special questions being put to the jury — is presumed to be based on every ground in the law at issue in the case. Hence the majority voted to strike the law down, as violating Terminiello’s free speech rights. Three dissenting opinions were filed, two on technical legal grounds not pertinent to our subject. The third, by Associate Justice Robert H. Jackson, after noting that the speaker had actually incited mob violence (including bricks thrown through windows), presented a chilling portrait of a mobs and street clashes:
The present obstacle to mastery of the streets by either radical or reactionary mob movements is not the opposing minority. It is the authority of local governments which represent the free choice of democratic and law-abiding elements, of all shades of opinion but who, whatever their differences, submit them to free elections which register the results of their free discussion.… Violent and noisy shows of strength discourage participation of moderates in discussions so fraught with violence and real discussion dries up and disappears. And people lose faith in the democratic process when they see public authority flouted and impotent and begin to think the time has come when they must choose sides in a false and terrible dilemma.
Sound familiar?
Jackson concluded with this paragraph:
This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
Chief Justice Rehnquist’s quoting Oliver Wendell Holmes’s “page of history is worth a volume of logic” echoes Jackson’s admonition.
In 2015 I concluded an American Spectator article, “Finding the First Amendment,” with this, as to the evolving idea that the sensitivity of the audience can curtail the freedom of the speaker:
Thus encouraged, extremists will push the bounds of what offends them as far as they can. If we indulge their designedly hyper-amplified sensitivities, we will find ourselves with the most narrowly confined boundaries of permissible speech when we most need maximum freedom. Our worst enemies cannot be allowed to dictate the protected ambit of our Constitution’s freedom of speech.
Yet this is where we are now. A single color of complexion is deemed inclusive, while other colors are all deemed exclusionary; and the most inclusive term English offers, “all” — is dismissed as a “dog-whistle” for racism.
Which leads us one again to Lewis Carroll, this time with Humpty-Dumpty:
“I don’t know what you mean by ‘glory’,” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t — till I tell you. I meant ‘there’s a nice knock-down argument for you!’”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument,'” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
The past fortnight has shown us who is to be master: the mob.
It will be argued that, as the great majority of demonstrators were peaceful, the far smaller mobs of rioters and vandals have been eclipsed. And it also should be noted that in some cases genuine protesters physically prevented unruly elements from violent escalation. Would that this were so.
In a video-obsessed, socially networked world, violence dominates the images circulating the globe. The old news maxim, “if it bleeds, it leads,” is more applicable than ever.
Bottom Line. A republic that declines to protect revered national symbols is ripe for the taking. A pure free-speech stand could perhaps prove sufficient to forestall this, but the ascendancy of multicultural political correctness undercuts this argument. In reality, on the spectrum of honor/shame cultures, America today is no longer the honor culture of yesteryear; it is a shame culture rooted in confession to present and past sins, some real, others imagined. Our prime adversary today is a rising superpower, China, deeply rooted in an Oriental honor culture that goes back at least three millennia. China is seeking in myriad places to take advantage of our being consumed with rising domestic unrest and recovery from a pandemic of China’s own making.
Justice Stevens, in his dissent, turns out, in retrospect, to have been an optimist. Of spray-painting by vandals then, his reassuring words were that given such a “message of dissatisfaction on the facade of the Lincoln Memorial, there would be no question about the power of the Government to prohibit his means of expression.”
Other than routine protestations as to such acts, these desecrations have been met with a silence that is deafening.
Imperial Rome renounced suzerainty 21 years after the Vandals sacked the capital; at the rate we are going, we’ll be lucky to last half as long.
John C. Wohlstetter is author of Sleepwalking With the Bomb (2d ed., 2014).
