erik lundegaard


Friday August 27, 2010

John Paul Stevens Quote: Where Have All the Flag Burners Gone?

“Veterans of the Second World War dominated American public life for decades, but Stevens is practically the last one still holding a position of prominence. He is the only veteran of any kind on the Court. (Kennedy served briefly in the National Guard; Thomas received a student deferment and later failed a medical test during Vietnam.) 'Somebody was saying that there ought to be at least one person on the Court who had military experience,' Stevens told me. 'I sort of feel that it is important. I have to confess that.' The war helped shape his jurisprudence, and even today shapes his frame of reference. In his dissent in Citizens United, he questioned the majorityís insistence that the United States government could never discriminate on the basis of the identity of a speaker by saying,'Such an assumption would have accorded the propaganda broadcasts to our troops by ”Tokyo Rose“ during World War II the same protection as speech by Allied commanders.' Since Tokyo Rose is not exactly a contemporary reference, Stevens told me, 'my clerks didnít particularly like that.'

Stevensís Second World War experience also played a part in perhaps his most anomalous opinion as a Justice. In 1989, he dissented from the decision that protected the right to burn the American flag as a form of protest. 'The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach,' he wrote in an unusually lyrical dissent. 'If those ideas are worth fighting foróand our history demonstrates that they areóit cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection.'

”'The funny thing about that case is, the only consequence of itónobody burns flags anymore,' Stevens told me. 'It was an important symbolic form of protest at the time. But nobody does it anymore. As long as itís legal, itís not a big deal. You just donít have flag burning.'Ē

--from Jeffrey Toobin's article “After Stevens” in the March 22nd issue of The New Yorker

Posted at 06:12 AM on Friday August 27, 2010 in category Law