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By The Seat of One's Pants

It’s hard to imagine it now, but fifty years ago, lots and lots of Americans were deeply offended by people wearing images of the United States flag. The Vietnam War was raging, young people were terrified of being drafted or jailed for protesting the draft. Indeed, the war was one of the reasons that men went to college in higher numbers at that time in order to obtain deferments. It is one of the reasons why college campuses began to be seen as bastions of the left. And, you know those crazy kids with their draft deferments and their liberal thinking and their bell bottom blue jeans and their long hair and their women’s lib and their black power and all their peace, love, and understanding – well they were just trouble. Massachusetts – home then, as it is now, to over 100 colleges and universities - with thousands of students - was in a bind. The very white, very male legislature passed some interesting legislation, including the significant Anti-War Bill and failed to pass others, like the right to an abortion bill. In that mix was G.L. ch. 264 sec. 5 prohibiting desecration of the United States Flag.

Armed with this new criminal offense, police officers in Leominster, MA took offense when they saw (Mr.) Valerie Goguen walking around town in pants festooned with the image of the American flag on the back pocket. So, they did the thing that comes naturally to police officers – they swore out a complaint and hauled him into court to face charges for contemptuous treatment of a flag. The case was tried. Goguen was convicted and sentenced to serve time. The Massachusetts courts upheld the conviction in a very terse rescript opinion that, nonetheless, made space for the word “vexillologist” (which I looked up so you don’t have to). Commonwealth v. Goguen, 361 Mass. 846 (1972).

Goguen filed a petition for writ of habeas corpus. Upon filing that motion, he also received a stay of execution for the remainder of his sentence. The United States District Court for the District of Massachusetts (Judge Levin Campbell) overturned the conviction as the law was void for vagueness and violated the protections guaranteed by the First Amendment. Goguen v. Smith, 343 F. Supp. 161 (1972). The Court of Appeals for the First Circuit upheld the ruling by the U.S. District Court. Goguen v. Smith, 471 F.2d. 88 (1972). Goguen was a free man. All Bay Staters could bravely march through the streets with flags peering out from any place they wanted to sew them. While many cops were stunned by anyone who would sit on an image of a flag, some actually believed flags should be used this way.

Not so fast – the Worcester County District Attorney filed for certiorari to the United States Supreme Court  - who took this case – and in a split decision upheld the federal courts finding the statute unconstitutionally vague. Smith v. Goguen, 415 U.S. 566 (1974).

Unconstitutionally vague rabbit hole: Many years ago, I also argued that a Massachusetts criminal statute was unconstitutionally vague. My argument involved the (unconstitutionally vague) term “serious bodily injury” in the only place within the Massachusetts General Laws where it remains undefined. In the case, the victim suffered minor injuries that would not satisfy any definition of "serious bodily injury" not only in Massachusetts, but in the entire United States of America. This was the difference between life in prison and 20 years in prison (note: my client was not claiming innocence or asking for a new trial, only a resentencing from life in prison to a 20 year term). The Supreme Court did not take my case when the First Circuit ruled against me (with a dissent from the late, great Judge Juan Torruella). It’s a travesty. It continues to be a travesty. And because no one reads my blog it will remain a travesty. Sigh.

So, hurrah! But, who is going to tell these guys that the reason they can wrap themselves and their universe in American flags is because of some hippie kid in the 1970’s in Massachusetts with a flag patch on his ass? And, you know, that “libtard”, left wing Burger Court.

Blackmun’s dissent in which Burger joined rabbit hole: Yikes not one, but two rabbit holes!: Justice Blackmun, joined by the Chief Justice dissented. They would not have supported anyone wearing the flag because, goshdarnit, people have written poetry about the flag! It's emotional! No one who was alive during the Second World War and witnessed that picture of the American flag being raised on Mt. Suribachi on Iwo Jima would ever dream of desecrating the flag by making a mockery of it on clothing. They believed that Goguen was convicted and deprived of liberty for a good cause, “[h]e was simply prohibited from impairing the physical integrity of a unique national symbol which has been given content by generations of his and our forebears, a symbol of which he had acquired a copy. I believe Massachusetts had a right to enact this prohibition.”  Smith v. Goguen, 415 U.S. at 600-601. Side note - they would have been positively apoplectic with how the far right has co-opted the flag today.

The Supreme Court of the United States found that the flag desecration criminal statute was void for vagueness. So, why is it still on the books? And, why is the state Supreme Judicial Court opinion upholding Goguen’s conviction still registering as good law even though it was reversed?  So. Many. Questions.

It’s been 50 years since the Court ruled in Smith v. Goguen. In that case, the Court was cognizant of brewing change, of young people chafing against a war they saw as unjust and rules designed by prior generations that no longer seemed to make sense. They were pushing limits – kind of like every generation everywhere. But, by taking a treasured symbol of a country they loved and sitting on it, the statement was akin to flying the flag upside down. If it is speech, it says we are in distress here. It's not offensive, it's a cry for help (as opposed to whatever this is or this or this). Is wearing an image of a flag a form of protected speech? Maybe. The law is still on the books. Could it be viewed as a permissible time-place-manner restriction if someone tried to use the anti-desecration statute today to prosecute someone who offended others with some version of the flag, especially when it is combined with the confederate flag or militia flags or other far-right symbolism antithetical to everything many of us (still) believe America stands for? I would be interested to see that case play out.

The country is again in tumult. Cops are still ready to swear out complaints for anything they dislike.  It's possible that the people wearing the flag still do so out of love for country, however misguided. The nation is divided politically in ways neither side can even explain to the other with the fringe elements taking it upon themselves to be the spokespeople. And, thereby, explaining nothing.

Today, people literally wrapped in the flag are spewing hatred, living in conspiracy theories, utterly ignorant of history, unconcerned with truth, supporting policies and people so far to the right that they are unrecognizable as American. Not one of these people who are, without any question at all, truly desecrating the American flag, has any idea that their First Amendment right to offend and disgrace and horrify regular Americans in this way exists because some kid who sewed an American flag to his back jeans pocket and had the audacity to walk down the street in Leominster was arrested, tried, and convicted of desecrating the flag.

Those folks - the ones who rose up in insurrection, who support a demagogue megalomaniac, who stormed the seat of government in order to overturn a democratic election - have no idea that their First Amendment free speech right exists because when a kid was wrongfully convicted, great lawyers stepped up, managed to argue his case to the highest court in the land based on the first amendment that the Framers added to the Constitution and won. That is, despite their lunatic claims, the reason those rights exist and continue to be worth fighting for is because the system they are fighting against is actually a system that works.

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