tazzygirl
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Can the government criminalize “misuse” of the American flag, acts which treat the flag “contemptuously?” In the case of Smith v. Goguen, the Supreme Court had to decide whether a Massachusetts teenager could be convicted for wearing a patch of the American flag on the seat of his pants. According to the Court, the Massachussets law against misusing the American flag was unconstitutionally vague.
Smith v. Goguen: Background
Goguen was seen by police wearing a small cloth version of the American flag on the seat of his pants. Goguen was not involved in any protests, demonstrations, or criminal conduct. The police later swore out a complaint against the teenager solely because of where and how he wore the flag.
Massachusetts banned “misuse” of the flag:
Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States ... whether such flag is public or private property ... shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both...
Goguen was convicted and sentenced to six months in prison. The Massachusetts Supreme Judicial Court affirmed the conviction, rejecting Goguen’s claim that the law was unconstitutionally vague. A federal district and the 1st Circuit Court disagreed, overturning the conviction. The case went to the Supreme Court.
Smith v. Goguen: Decision
The Supreme Court ruled 6-3 that the law was unconstitutional, agreeing with lower federal courts that the law was too vague for not making it clear what conduct would be subject to criminal prosecution and what conduct would be left alone — the wording of the statute could prohibit non-ceremonial, non-reverential uses of the American flag. Obviously the police didn’t prosecute every non-ceremonial use of the flag — arrest and prosecution were selective because there was never any desire to “make criminal every informal use of the flag.”
Flag contempt statutes have been characterized as void for lack of notice on the theory that “[w]hat is contemptuous to one man may be a work of art to another.” ... As both courts below noted, casual treatment of the flag in many contexts has become a widespread contemporary phenomenon. Flag wearing in a day of relaxed clothing styles may be simply for adornment or a ploy to attract attention. It and many other current, careless uses of the flag nevertheless constitute unceremonial treatment that many people may view as contemptuous.
Powell implies they might have ruled differently if the case had occurred during an earlier time. Powell isn’t arguing that wearing the flag on the seat of one’s pants is inherently non-contemptuous, but rather that the current state of American culture is so diverse that what some see as contemptuous, others see very differently. This is a problem with bans on certain uses of the flag due to how others will react. What some regard as contempt or desecration, others will view differently — it’s a natural consequence of a diverse culture.
The Massachusetts statute ... makes it a crime if one “treats contemptuously” the flag of the United States... which, in ordinary understanding, is the expression of contempt for the flag.
In the case before us, as has been noted, the jury must have found that Goguen not only wore the flag on the seat of his pants but also that the act - and hence Goguen himself - was contemptuous of the flag. To convict on this basis is to convict not to protect the physical integrity or to protect against acts interfering with the proper use of the flag, but to punish for communicating ideas about the flag unacceptable to the controlling majority in the legislature.
Neither the United States nor any State may require any individual to salute or express favorable attitudes toward the flag. [emphasis added]
How a person treats a flag in public necessarily sends messages to others. If a person is forced to treat a flag with reverence, then they are forced to send messages of reverential and respectful attitudes towards the flag and government. This, however, the government cannot require.
Smith v. Goguen: Significance
The Goguen decision reinforces the principle that the government cannot command people to adopt or express particular ideas or attitudes. This decision is also important for contemporary debates over laws against flag burning because such laws are almost invariably based upon the premise that public handling of the flag should be respectful in nature and that any “desecration” of the flag should be banned because of the disrespectful attitude it expresses.
http://atheism.about.com/od/flagburningcourtcases/a/SmithGoguen.htm
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RE: American students sent home for wearing American flags - 
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