Aram Goudsouzian is the chair of the History Department at the University of Memphis, where he has taught courses on the civil...

Episode Notes

What pushes a 51 year-old decorated World War II veteran to burn the American flag? In June of 1966, Sidney Street heard the news that James Meredith, an icon of the Civil Rights Movement, had been shot on the second day of his March Against Fear. Street, an African American himself, burned the flag and was arrested. Street declared, “If they let that happen to Meredith, we don’t need an American flag.” So sparked the question of whether the government can punish someone for using words to defile or disrespect an American flag. In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White examines Street v. New York, the Supreme Court case which concluded that the First Amendment allows freedom of expression towards the American flag — if not yet the right to burn it. The episode features the input of Professor Aram Goudsouzian, the chair of the History Department at the University of Memphis, and the author of the book “Down to the Crossroads: Civil Rights, Black Power, and the Meredith March Against Fear.” The episode also features a listener question from Ben Olson about the inclusion of the word “Congress” in the First Amendment — if the First Amendment says it only applies to Congress, why is it applied to protect us from action by state and local government? This question leads Ken to discuss the Fourteenth Amendment and the Incorporation Doctrine. If there’s a case you want to hear about, or a First Amendment question you’d like answered on the podcast, email Ken at [email protected]

Transcript

Make No Law: The First Amendment Podcast

Street

05/16/2018

[Music]

Ken White: At around 6 in the evening, on June 6, 1966 Sidney B. Street left his apartment building in Brooklyn. He walked about a block away to the corner of Lafayette and St. James, and then he burned the American flag.

[Music]

Nobody would cast Sidney Street as a flag-burner. He wasn’t a hippie or a student radical, he was a 51-year-old decorated World War II veteran who worked as a bus driver at the New York Transit Authority, and he didn’t have to go looking for an American flag to burn, he already owned two; one crisp new one with 50 stars that he flew on national holidays, and an older faded 48-star flag that once covered his father-in-law’s casket. That’s the one that he chose to burn.

When he did it he laid a piece of newspaper, carefully on the ground. He lit the flag on fire with a match, and he held it still perfectly folded for as long as he could before he laid the burning flag down on the piece of paper so that it wouldn’t touch the ground.

What makes a veteran, a patriot burn the flag that he was once so proud to fly? To answer that the other thing you need to know is that Sidney Street was African-American, in that evening of June 6, 1966 as he listened to the radio, he heard news of another African-American man, James Meredith, a Civil Rights icon, the man who had integrated the University of Mississippi. He heard that James Meredith had just been shot, just outside of Hernando, Mississippi on the second day of his March Against Fear. That March was for the proposition that he should be able to exercise his rights openly in his own country.

[Siren]

When a police officer saw the smoke from the burning flag he stopped his car to investigate. He asked Sidney Street if he had burned the flag, and Street said, I burned it. If they let that happen to Meredith, we don’t need an American flag.

Sidney Street was arrested and charged with disturbing the peace and with violating New York’s flag Desecration Statute.

James Meredith and Sidney Street encountered the same truth on the same day that having a right on paper, is it the same as being able to exercise it?

I am Ken White, and this is Make No Law: The First Amendment Podcast from HYPERLINK “http://www.Popehat.com” Popehat.com brought to you on the Legal Talk Network.

This is Episode 6, Street.

[Music]

President Kennedy: Good evening, my fellow citizens, the orders of the court in the case of Meredith v. Fair are beginning to be carried out.

Mr. James Meredith is now in residence on the campus of the University of Mississippi. This has been accomplished thus far without the use of national guard or other troops.

Ken White: 1966 was a transition point for the Civil Rights Movement. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 were towering achievements, but they were having only limited impact on actually improving the day-to-day lives of real people. That led to tension, tension between the Civil Rights Movement and the government, and tension within the Movement itself.

I talked to Professor Aram Goudsouzian. He is the Chair of the History Department at University of Memphis, and he is the author of a book called, ‘Down to the Crossroads: Civil Rights, Black Power, and the Meredith March Against Fear’. I asked him to set the stage to describe the different conflicts into which James Meredith marched.

(00:04:59)

Aram Goudsouzian: One part of it was the increasing alienation of the Federal government from the Civil Rights Movement. The Federal government had been somewhat of a reluctant ally to the movement over the course of the mid-1960s, but had helped to pass the Civil Rights Act and the Voting Rights Act of ‘64 and ‘65, which of course promised to transform Jim Crow out over the coming generation.

And yet, there was the sense of alienation on the part of the Federal government and particularly President Lyndon Johnson. One aspect of this was the riot in Watts in August of 1965, soon after the passage of the Voting Rights Act, and from the perspective of Johnson he thought we’ve done all these things for African-Americans yet there is this violence going on, that is alienating to the Movement and it very much frustrated.

From the perspective of African-Americans on the ground, particularly outside of the south, they said, look, our lives haven’t changed despite all the promises of the Civil Rights era, we continue to suffer poverty, we continue to suffer from second-class citizenship.

And soon after that was the government’s report by Daniel Patrick Moynihan that was somewhat of an investigation into urban poverty, but its analysis centered on the Black family and the destruction of the Black family since they’re going back to slavery. Too many Black activists, they read Moynihan’s report as an attack on them and blaming them for the ills that had been imposed upon African-Americans. So, there was this growing distance between the liberal institutions of the government and activists on the ground.

Ken White: But there wasn’t just tension between the civil rights activists and the government, there was also tension within the Civil Rights Movement, tension over competing strategies and visions of equality.

Aram Goudsouzian: Within the movement itself as well there had always been different political approaches among civil rights activists, a group like SNCC (The Student Nonviolent Coordinating Committee), its emphasis had always been on grassroots activism, on the leadership on the ground, on trying to empower people in local communities, long-term, sort of work like that.

Martin Luther King Southern Christian Leadership Conference tended to be more oriented around mass demonstrations that compelled media attention, non-violence that brought national attention and aroused the moral conscience which led to transformative legislation.

And those two groups that worked hand-in-hand and had complemented each other and embedding creative tension throughout the years of the Movement, but increasingly there was a tension and for groups like SNCC, there was some questions about what to do with their White activists who were part of the organization. Their goals had always been Black empowerment, not necessarily racial integration as the first step or rather empowering African-Americans.

For a group like King Southern Christian Leadership Conference on the other hand they tended to think in more sort of integrationist terms and really non-violence as a way of life. The Southern Christian Leadership Conference’s motto was to free the soul of America. They had these — those sort of broader agenda from that, then there were groups like the NAACP, primarily legal organizations and lobbying organizations and Roy Wilkins was increasingly critical of what he saw as the direction of groups like SNCC.

Some of these tensions could be seen just the week before James Meredith started his march there was a White House Conference on civil rights hosted by Lyndon Johnson and it brought together activists, businesspeople and Black leaders and others who were interested in the civil rights struggle.

And SNCC Stokely Carmichael’s organization decided to boycott the White House Conference. They said the government isn’t really interested in solutions to helping us. We’re much more interested in Black empowerment on the ground.

Other groups like CORE, the Congress of the Racial Equality participated in the conference, but were quite critical of it.

Ken White: It was at this moment that James Meredith stepped back into the limelight. Meredith with the backing of the federal courts, the NAACP and the Kennedy administration had become the first African-American to attend the University of Mississippi. He was the focus of everything from news to riots in 1961 and 1962, but then he traveled to Africa and went to Law School and he fell out of the public eye.

In June of 1966 he came roaring back with his own mission, a mission that wasn’t part of anyone else’s agenda.

Aram Goudsouzian: James Meredith was really a man on his own. He did not fit into any of the established organizations, he didn’t fit into any ideological box.

In some ways you could classify him as a conservative in the sense that he was truly individualistic in terms of his approach and he was the man who really believed in his own sense of destiny. He sometimes referred to it as a divine responsibility. He really marched to the beat of his own drum and he was not really part of any established organization whatsoever.

Ken White: The Meredith March Against Fear was all about taking the promises of the 1964 Civil Rights Act and the 1965 Voting Rights Act and trying to make them real.

James Meredith wanted to see if the rights that the Federal government was promising to African-Americans were rights that they could actually exercise.

Aram Goudsouzian: Meredith announced that he was going to march from Memphis to Jackson about 220 miles down Highway 51 with the notion of accomplishing two things.

(00:10:00)

One was that he would encourage African-Americans to register to vote. This is of course a year after the passage of the Voting Rights Act, we’re just starting to see the first uptick in Black voter registration in Mississippi, which was the lowest in the entire country.

And the second related goal to that was to conquer the culture of fear in the south and particularly in Mississippi, among many African-Americans. They lived under racial intimidation, and Meredith of course, is famous for four years earlier, having been the African-American man who integrated the University of Mississippi Ole Miss, which of course prompted a constitutional crisis, riots, the involvement of the Kennedy administration and became a major media flashpoint in the midst of Civil Rights Movement.

So, James Meredith was quite possibly among Whites, the most hated Black man in Mississippi. So, if he could march 220 miles from Memphis to Jackson, then other Black people could register to vote and participate in the democratic process, that was his vision.

There was a third sort of unstated aspect of his mission as well and that was to further his own political career that he thought this would be a way to build his political base, establish himself as a leader in Mississippi. At the time, he was a law student at Columbia Law School in New York but he hoped to return to Mississippi and run for lieutenant governor in the upcoming years.

Ken White: The Meredith March Against Fear started small, but it got bigger until he was shot.

[Gunshot]

Aram Goudsouzian: It’s interesting when Meredith starts his march on June 5, 1966, it’s a Sunday, and it compelled some media attention but it’s more like this quirky sideshow almost. People are aware of it, but Meredith, he’s not part of any major civil rights organization.

Since his time at Ole Miss, he somewhat drifted out of the public consciousness because he’d spent some time in Africa and then he was in law school, and he wasn’t in the media eye in the way that he had been a few years earlier. And yet, he was on the front page of The New York Times when he started his march and so on.

That was on the first day of the march. On the second day of the march, is June 6th, it’s a Monday, he is — at that point enters the State of Mississippi and he reaches the first town of Hernando where he gets a warm reception from African-Americans and hostile glares from Whites, but he feels pretty sort of happy about the situation, and he continues to march south.

He’s thinking of stopping soon and a White man, man named Aubrey Norvell emerges from a gully and shouts Meredith’s name and shoots three times and wounds Meredith.

Ken White: James Aubrey Norvell used a shotgun, loaded with birdshot. He wounded Meredith but he didn’t kill him. All of this happened in front of police and reporters and cameramen. The result was chaos.

[Gunshot]

James Aubrey Norvell: I’m hitting the leg, I am not hitting the head. Hey, nobody go get me in the car.

[Crosstalk]

Ken White: With news reporters and photographers and audio on the scene, the story raced around the world.

[Music]

Aram Goudsouzian: There is an immediate national media reaction to Meredith that’s being shot. One element that really sort of accelerates the sense of Black rage and the aftermath of Meredith’s shooting is a mistaken news report by a cub reporter for The Associated Press.

Over here was another reporter said that Meredith has been shot in the back and the head. And he thinks that he heard Meredith was shot dead, and he reports that to the AP Bureau, Nashville which then circulates it nationwide. By the time, AP corrects the mistake about a half hour later, it’s news that has been circulating on television, on the radio and it’s filtering throughout the country. So, that sort of accelerates the sense of rage upon the shooting of Meredith.

It becomes at that moment almost like another iconic instance of White violence against African-Americans, like the fire hoses in Birmingham, like Bloody Sunday on the Selma Bridge.

James Meredith’s photo of him arriving on Highway 51 after getting shot, it’s a photograph that later was a pure surprise, but at that moment, it splashed across the front page of every newspaper in the country, it’s in papers around the world. So, it becomes this incredibly intense flash point for the frustrations of African-Americans of their continued second-class citizenship.

Ken White: Sidney B. Street of Brooklyn, New York was one of the countless African-Americans who heard the news. He felt the outrage shared by so many.

Aram Goudsouzian: The radio reports filter into Harlem, New York and there’s a sense of boiling rage on the streets. There’s some Whites who are in Harlem at the time and who sort of get a sense that they should leave and take cabs downtown, there were street corner speakers who were talking about this as an outrage.

(00:14:56)

Throughout the country you are hearing from sort of local NAACP leaders or black activists who said I have been nonviolent up through this time, but you can’t expect me to be nonviolent anymore, how much more can we take.

There’s a speaker in Los Angeles who says, I have turned the other cheek enough, I don’t have any other cheeks to turn.

So Sidney Street’s action is definitely in line with this larger sense among many African-Americans that this is kind of the final straw, their faith has been broken in nonviolence, their faith has been broken in the democratic process.

Ken White: So James Meredith, a man who is supposed to be equal before the law, a man who is supposed to have constitutional and statutory rights, was shot for exercising them.

And what about Sidney Street and his rights? The police arrested Street and charged him with disorderly conduct. They also charged him with violating the New York Malicious Mischief Statute. That statute makes it a crime and I am quoting “to publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act the American flag.”

Sidney Street went to trial. The jury acquitted him of disorderly conduct, probably because there was no evidence that anyone got upset by what he did, but under that Malicious Mischief Law, they found him guilty.

Sidney Street appealed, all the way to the United States Supreme Court. A lot of the briefing in the case, a lot of what the government and Street’s lawyers wrote was about whether the government could prohibit the burning of the flag or whether that act was protected by the First Amendment.

Street’s legal team was adamant that it was protected speech.

Female Speaker: Thus, the fact that flag destruction is in some metaphysical way an affront for a symbolic sovereignty cannot and ought not to form a basis for punishment. For if we concede that there are certain political symbols which are above desecration, we open the door to drastic suppression of our right to criticize the state. There is no logical differentiation between burning the flag and burning an effigy of the president.

Our flag is really the effigy of a nation. As such, it is not immune from symbolic criticism.

Ken White: And the government was just as passionate.

Male Speaker: In concluding, it is respectfully prayed that no constitutional guarantee be permitted to shield the appellant’s act from punishment and whether this court shall or shall not attach the quality of symbolic expression to the burning of the flag of the United States, it is nevertheless so patently offensive to and sacrilegious of the deep traditional feelings of the American and the very spirit of this country’s history that it would be unthinkable to shelter such conduct under the protective mantle of our treasured Constitution, with which the flag is inseparably fused. To do that would make constitutional guarantees the very means of self-annihilation.

Ken White: Strangely though, by the time they reached oral argument before the Supreme Court, Sidney Street’s lawyers no longer argued that flag burning was protected speech. They conceded they weren’t making that argument. Instead, the issue is whether Sidney Street was convicted for flag burning or for words, for the words he spoke about the flag when he was arrested. He said “if they let that happen to Meredith, we don’t need an American flag.”

The complaint against Street quoted those words. The government introduced them as evidence. The statute refers to words. The New York law says you can violate it by casting contempt by words or act on the flag.

Here’s how Justice Abe Fortas put it.

Justice Abe Fortas: Maybe that’s — maybe that’s right, but the statute certainly doesn’t seem to be phrased in those terms. The statute does not confine itself to the act of burning or desecrating the United States, together with such words or other conduct as would indicate that this act is being done contemptuously of the flag, wouldn’t you agree with that?

The statute which talks about makes it a crime to use the words. Not merely as evidence of intent, the intent with which the action was done.

Mr. Brodbar, let us suppose that you had a case that involved only words, words expressing the utmost contempt and hatred for the American flag. Now would those words standing alone fall within the condemnation of this statute?

(00:20:07)

Harry Brodbar: Yes, Your Honor.

Justice Abe Fortas: Now, that’s the nub of the trouble here.

Ken White: Perhaps the only person who thought that flag burning might be protected by the First Amendment was Thurgood Marshall, the court’s first African-American justice. He questioned the government’s lawyer to try to tease out what interest the State has in prohibiting flag burning. The Statute requires the Act to be public. Was it about preventing public disturbances or was it something else?

Harry Brodbar: 30 to 40 people. Your Honor.

Justice Marshall: Is it in the record?

Harry Brodbar: Yes, yes Mr. Justice Marshall.

Justice Marshall: Suppose it burned at night and nobody there?

Harry Brodbar: Well, it would have to be the word public connotes say presence of people for that mean —

Justice Marshall: How many people?

Harry Brodbar: Enough people to start a riot. A reasonable amount of people, perhaps, five people will be enough.

Justice Marshall: Well, I taught the definition of riot was three or more?

Harry Brodbar: Well, I would say that three or more people would have to be present. I would also say that 30 to 40 people is significant —

Justice Marshall: So, we really don’t — we really don’t know what the statute means by public late. Do we?

Harry Brodbar: Well, the Statute does not defy a public. We must go back to the case law and that the word public signifies the presence of a reasonable number of persons, which might give rise to the danger that the Statute intends to prohibit.

Justice Marshall: Well, I could see a little difference myself between burning a flag on my front lawn and burning it in Yankee Stadium, could you?

Harry Brodbar: No, I cannot —

Justice Marshall: You couldn’t.

Harry Brodbar: — except that the chances for a disturbance might be greater in Yankee Stadium, but the disturbance is there nevertheless, if near your lawn there are other persons present.

Justice Marshall: Suppose they’re all friends?

Harry Brodbar: Friends may too retaliate in the burning of American flag.

Justice Marshall: Suppose they all agree with me.

Harry Brodbar: Pardon, Your Honor.

Justice Marshall: Suppose they all agree with me, that the flag should be burned?

Harry Brodbar: Well, there is nothing need than the flag must be protected from people who agreed to burn a flag contemptuously.

Justice Marshall: Where is that in the Statute?

Harry Brodbar: The Statute does not say that but Halter against Nebraska —

Ken White: The Supreme Court wasn’t ready yet to decide that burning the flag was protected speech, they wouldn’t do that until Texas v. Johnson in 1989.

But in April of 1969 the Supreme Court overturned Sidney Street’s conviction. First, the court found that the way the Statute worked and the way Sidney Street was charged they couldn’t tell whether he was convicted for burning the flag or for speaking words against the flag.

Here’s Justice Harlan.

Justice Harlan: In the face of an information explicitly setting forth appellant’s words as an element of his alleged crime, and of appellant’s subsequent conviction under a statute making it an offense to speak words of that sort, we find this record insufficient to eliminate the possibility either that appellant’s words were the sole basis of his conviction or that appellant was convicted for both his words and his deed.

Ken White: So, the court turned to the ultimate question, can the government punish someone for using words to defile or disrespect an American flag? The answer was no.

Justice Harlan: We come finally to the question whether, in the circumstances of this case, New York may constitutionally inflict criminal punishment upon one who ventures publicly to defy or cast contempt upon any American flag by words.

We have no doubt that the constitutionally guaranteed freedom to be intellectually diverse or even contrary, and the right to differ as to the things that touch the heart of the existing order, encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.

We add that disrespect for our flag is to be deplored no less in these vexed times than in calmer periods of our history. Nevertheless, we are unable to sustain a conviction that may have rested on a form of expression, however distasteful, which the Constitution tolerates and protects.

Ken White: So, however much we Revere the flag under the First Amendment, the government cannot punish us for saying things against it.

There’s a lot of very stirring prose about the American flag in the government’s brief in this case. Language about what people have done defending the flag and what it means to Americans, but we have to think about Sidney Street’s question, what does the flag mean?

If some Americans can’t exercise the rights it represents without being shot, what is more offensive to the American idea, Sidney Street burning flag or the thing that provoked him to do it?

(00:25:03)

Aram Goudsouzian: Sure. I mean James Meredith is a military veteran himself. James Meredith is the man as a patriot. He loves the idea of the United States and he just wants the United States to live up to its ideal.

So, for Sidney Street, another military veteran, another person who has no sort of track record of participation in radical or I think he has no association with that, this is an incident that is breaking his fate in America essentially.

Ken White: Sidney Street returned to his life as a family man and bus driver, James Meredith recovered and he took up the march again, right where he had left off. He is still alive today in Jackson, Mississippi, and I hope he’s living without fear.

[Music]

I’ve been asking you, our listeners to send in First Amendment questions you’d like answered on the podcast. Thank you for your responses.

Here’s an email from Ben Olsen.

Ken, I’ve been wondering the word “Congress” in the First Amendment, what is it doing? It seems like most if not all law ignores the Congress part and it’s considered unconstitutional for state and local governments to also make laws restricting speech? Why does it mention Congress specifically?

That’s a good question, Ben. The explanation is something that lawyers learn about but many non-lawyers don’t. The answer lies with the 14th Amendment of the Constitution and something called the Incorporation Doctrine.

The First Amendment does say Congress shall make no law, it’s right in the title of this podcast. It’s part of the Bill of Rights, the first ten amendments of the Constitution ratified in 1791. It’s the only one of the Bill of Rights that explicitly mentions Congress or it explicitly limits its scope to the Federal government. But pretty early on the United States Supreme Court held that the Bill of Rights only limited the Federal government not the states.

In 1833 in a case called Barron v. Baltimore, the Supreme Court said that the restrictions on government power and the Bill of Rights only limited the government of the United States, not the government of the individual states.

So, what’s the United States that can’t make a law abridging free speech or jail people without due process or search people unreasonably? It was the state constitutions that were designed to protect people’s rights from action by the states.

But then after the Civil War, in 1868, America adopted several constitutional amendments prohibiting slavery and starting the long and winding road towards prohibiting official racial discrimination by the states. One of those was the Fourteenth Amendment.

The Fourteenth Amendment says that no State can deprive a person of life, liberty or property without due process of law.

In other words states, now the Constitution limits what you can do to people as well.

But what does that mean? What does it mean that a State can’t deprive you of Liberty without due process? What is liberty? Well, the Supreme Court began to decide gradually that the liberty protected by the Fourteenth Amendment includes most of the rights in the Bill of Rights, those first ten amendments.

Put another way, the Fourteenth Amendment incorporates those rights. So, for instance, in 1925 in a case called Gitlow v. New York, the Supreme Court said, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgement by Congress are among the fundamental personal rights and liberties protected by the Due Process Clause of the Fourteenth Amendment from impairment by the states.

This is the incorporation doctrine, not all of the rights have been incorporated. For instance, the Fifth Amendment right to be indicted by a grand jury if you’re charged with a felony has never been incorporated, and so, it only applies to Federal prosecutions unless your State constitution happens to require it.

The process is still ongoing. The Supreme Court only recently found in a case in 2010 that the Second Amendment right to bear Arms was incorporated under the Fourteenth Amendment and therefore applicable to the States.

I’m leaving now to a ton of nuanced and interesting history, but that’s the basic idea.

So, next time someone on the Internet says the First Amendment says Congress shall make no law, so it doesn’t apply to State law. You’ll know why they’re wrong. That happens every day and I die a little, every time. Thanks for the question, Ben.

(00:30:06)

In this series of podcasts, I will be telling more stories behind important First Amendment decisions. If there’s a case you want to hear about or a First Amendment question you would like answered on the podcast, drop me a line at HYPERLINK “mailto:[email protected]”[email protected].

Thanks for listening. You can find documents and cases mentioned on this podcast at HYPERLINK “http://www.popehat.com/”popehat.com or HYPERLINK “http://www.legaltalknetwork.com/”legaltalknetwork.com.

If you liked what you heard today, please remember to rate us at Apple Podcasts and follow us on Twitter or Facebook.

Lastly, I would like to thank our participants, voice actors, producers and audio engineers for their participation. My guest Prof. Aram Goudsouzian; our voice actors, Madison Markel as lawyer for Sidney Street, Jeremy Church as lawyer for the government, Jonathan Amarilio as Supreme Court Justice John Marshall Harlan, Producer Kate Nutting, Executive Producer Laurence Colletti, Research Assistant Jordan Miller, and last but not least, music, sound design, editing, and mixing by Adam Lockwood and assisted by Kelly Kramarik.

Excerpts from the oral argument in Street v. New York provided by Oyez, a free law project by Justia and Legal Information Institute of Cornell Law School.

See you next time for Episode 7, ‘Fire in a Crowded Theater’.

[Music]

Outro: The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Popehat, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer, please.

[Music]