The Supreme Court?s decision in Spence v. Washington was not unanimous. Three justices ? Burger, Rehnquist, and White ? disagreed with the majority?s conclusion that individuals have a free speech right to alter, even temporarily, an American flag in order to communicate some message. They agreed that Spence was indeed engaged in communicating a message, but they disagreed that Spence should be allowed to alter the flag to do so.

Writing a dissent joined by Justice White, Justice Rehnquist stated:

• The true nature of the State?s interest in this case is not only one of preserving ?the physical integrity of the flag,? but also one of preserving the flag as ?an important symbol of nationhood and unity.? ... It is the character, not the cloth, of the flag which the State seeks to protect. [...]
  
  The fact that the State has a valid interest in preserving the character of the flag does not mean, of course, that it can employ all conceivable means to enforce it. It certainly could not require all citizens to own the flag or compel citizens to salute one. ... It presumably cannot punish criticism of the flag, or the principles for which it stands, any more than it could punish criticism of this country?s policies or ideas. But the statute in this case demands no such allegiance.
  
  Its operation does not depend upon whether the flag is used for communicative or noncommunicative purposes; upon whether a particular message is deemed commercial or political; upon whether the use of the flag is respectful or contemptuous; or upon whether any particular segment of the State?s citizenry might applaud or oppose the intended message. It simply withdraws a unique national symbol from the roster of materials that may be used as a background for communications. [emphasis added]

It should be noted that Rehnquist and Burger dissented from the Court?s decision in Smith v. Goguen for substantially the same reasons. In that case, a teenager was convicted for wearing a small American flag on the seat of his pants. Although White voted with the majority in that case, he attached a concurring opinion where he stated that he would not ?find it beyond congressional power, or that of state legislatures, to forbid attaching to or putting on the flag any words, symbols, or advertisements.? Just two months after the Smith case was argued, this one appeared before the court ? though that case was decided first.

As was true with the Smith v. Goguen case, the dissent here simply misses the point. Even if we accept Rehnquist?s assertion that the state has an interest in preserving the flag as ?an important symbol of nationhood and unity,? this does not automatically entail that the state the authority to fulfill this interest by prohibiting people from treating a privately own flag as they see fit or by criminalizing certain uses of the flag to communicate political messages. There is a missing step here ? or more likely several missing steps ? which Rehnquist, White, Burger, and other supporters of bans on flag ?desecration? never manage to include in their arguments.

It?s likely that Rehnquist recognized this. He acknowledges, after all, that there are limits to what the state may do in pursuit of this interest and cites several examples of extreme government behavior which would cross the line for him. But where, exactly, is that line and why does he draw it in the place he does? Upon what basis does he allow some things but not others? Rehnquist never says and, for this reason, the effectiveness of his dissent completely fails.

One more important thing should be noted about Rehnquist?s dissent: he makes it explicit that criminalizing the certain uses of the flag to communicate messages must apply to respectful as well as contemptuous messages. Thus, the words ?America is Great? would be just as prohibited as the words ?America Sucks.? Rehnquist is at least consistent here, and that?s good ? but how many supporters of bans on flag desecration would accept this particular consequence of their position? Rehnquist?s dissent suggests very strongly that if the government has the authority to criminalize burning an American flag, it can criminalize waving an American flag as well.

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