Welch, Michael (2000) Flag Burning: Moral Panic and the Criminalization of Protest. New York: de Gruyter.

In FLAG BURNING, Michael Welch examines critically and in depth the controversy over flag desecration that has until now been ignored by sociologists and criminologists. Adopting a constructionist framework, he interprets the intensely negative societal reaction to flag burning as an instance of moral panic, a turbulent and exaggerated response to a putative social problem. What sets this particular response apart from other instances of moral panic is that it involves American civil religion, which bestows on a secular symbol, the flag, a quasi-sacred status and thus makes of its alleged burning and misuse an act of sacrilege.

This book explores how flag burning penetrates the collective consciousness and arouses latent social anxiety. Although the Supreme Court has held that flag burning is political expression, and thus is shielded by the First Amendment, flag burning has been perceived as a symbolic threat to American society, a threat culminating in a disaster mentality. Subsequent legislative attempts to ban flag desecration have also failed to meet the constitutional test in the courts, but the issue has not been laid to rest. The contradictions of persistent efforts to ban unpopular political expression in a democracy that protects free speech abound in the key elements of social constructionism, moral panic, and social control. To his exploration of these issues, Welch brings a vivid narrative and rich examples drawn from protest art, courtroom saga, and media coverage.

This book will be useful for classes in political sociology, deviance, and protest movements.

Table of Contents

Part I. The Emergence of Flag Desecration and Civil Religion

Chapter 1: Protest, Social Control, and the Semiotics of Flag Desecration
Chapter 2: The Roots of Flag Desecration in American History
Chapter 3: Civil Religion and the Flag as a Venerated Object

Part II: The Authoritarian Aesthetic and Its Resistance

Chapter 4: Questioning Authority in the Age of Protest
Chapter 5: Flag Burning as Political Iconoclasm in the 1980s
Chapter 6: Patriotism and Dissent in the Post-Eichman Era

Part III: Moral Panic over Flag Desecration

Chapter 7: Moral Panic and the Social Construction of Flag Desecration
Chapter 8: Moral Entrepreneurs and the Criminalization of Protest
Chapter 9: The Media and Its Contradictions in the Flag Panic
Chapter 10: Resisting the Criminalization of Protest

Flag Burning: Moral Panic and the Criminalization of Protest has been entered into the Congressional Record.

May 20, 2003

The Hon. Steve Chabot
Chair, Constitution Subcommittee
House of Representatives Judiciary Committee
Ford House Office Building H2-362
Washington, D.C. 20515

Dear Mr. Chabot:

Recently, it has been brought to my attention that Congress is once again revisiting the issue of flag desecration as reported in House Joint Resolution 4 (H.J. Res. 4). Specifically, the Resolution calls for an Amendment to the Constitution giving Congress the power to prohibit the physical desecration of the flag of the United States.

My colleague, Mike Israel of the Academy of Criminal Justice Sciences, apprised me of the Resolution and suggested that I contact you since I have authored a scholarly book on the subject, Flag Burning: Moral Panic and the Criminalization of Protest (2000, Aldine de Gruyter). In addition to having the entire book entered into the Congressional Record, Mr. Israel recommended that I prepare a brief summary of my work so that members of Congress can understand fully the implications of amending the Constitution with a provision banning physical desecration of the flag.

Based on years of research on governmental responses to flag desecration, I discovered that legislative measures not only fail to protect the nation's most cherished emblem, but actually endanger it. In other words, lawmaking tends to produce an ironic effect manifesting in a backlash by which demonstrators attack the flag in their efforts to criticize government. Indeed, that scenario was realized in 1990 when Shawn Eichman, Dread Scott, David Blalock, and Gregory "Joey" Johnson torched several flags on the steps of the Capitol, protesting the newly enacted Flag Protection Act of 1989. Moreover, the Supreme Court swiftly overturned their convictions in U.S. v. Eichman (1990), citing Texas v. Johnson (1989) whereby flag desecration became recognized as political speech and protected by the First Amendment. Remember, both of those rulings were met by considerable political and public contempt.

In these troubled times, it is important that members of Congress embrace their duty to unite Americans rather than rekindling previous issues that have proven divisive.

Should you or other members of the Committee have further questions regarding this matter, please do not hesitate to contact me.

Respectfully,

Michael Welch, Ph.D.
Associate Professor
Criminal Justice
Rutgers University
New Brunswick, NJ

REVIEWS

As Welch describes with brilliant detail, unpopular expressions have largely neglected sociological significance been subject to various historical forms of social control. Flag Burning is advertised as an exploration of the contours of colliding ideologies: that committed to the constitutional protection of free speech; and that committed to the criminalization of what, through the dynamics of moral panic, has come to be regarded by many as the basest form of disrespect for America and its way of life. Through extensive exploration of relevant arguments, cases, and players in the ongoing flag desecration controversy, the book successfully accomplishes its stated intent. Throughout the text, however, Welch establishes and presents an often subtle, often implicit subtextual defense of radicalism more generally. Flag Burning is, ultimately, less about the constitutional protection of free speech than efforts to criminalize and control protest and resistance, of which flag burning is merely the operative example.

In exploring the criminalization of protest, Welch relies on an effective variety of sociological concepts and theoretical tools. By attending to the semiotic and ontological underpinnings of flag burning, for example, Welch alludes to the significance of underlying and often neglected philosophical elements as they inform flag desecration. Namely, the American A flag sustains a hyperreal existence in that its symbolic reality (e.g., patriotism, liberty, freedom) has transcended its material reality, thus reifying the former. Efforts to criminalize or otherwise control flag desecration, as well as similar demands of submissive respect for the flag, are grounded in the assumption that the A flag has a material basis. Flag Burning is not, however, an exercise in deconstruction. Rather, its principle conceptual underpinnings are to be found in the interplay between civil religion, authoritarian aesthetics, moral enterprises.

Overall, Flag Burning is an accessible analysis of sociological processes related to the social control of protest and, more specifically, to the criminalization of flag desecration. In examining the elements of such processes, Welch draws from several interrelated and important sociological concepts. Namely, ample attention is given to the role of civil religion, authoritarian aesthetics, moral enterprises, and the ironies of social control. Divided into three broad sections, Flag Burning examines: the origin and emergence of flag desecration in historical context, alongside the force of civil religion; authoritarian aesthetics and the formal control of unconventional art, fashion, and lifestyle with specific regard for the Stars and Stripes; and a more systematic examination of the theoretical and conceptual components of the criminalization of protest, including the dynamics of moral enterprises (e.g., A Moral Panic and the Social Construction of Flag Desecration, Ch. 7).Throughout, Flag Burning is rich in case law and example, adding both substance and legitimacy to its conceptual framework. Chapter 8 (A Moral Entrepreneurs and the Criminalization of Protest) and Chapter 9 (A The Media and its Contradictions in the Flag Panic) add an empirical flavor to the historical, legal, and conceptual analysis by presenting deconstructive analyses of political rhetoric and media content as they have appeared over the course of the criminalization movement.
--Professor Christopher R. Williams. Quoted in Critical Criminology: An International Journal

"This book provides an account of the history of flag desecration and the efforts to criminalize it. Welch's analysis is primarily directed at unraveling the course and outcome of attempts to outlaw flag desecration and the unintended consequences these had. Michael Welch's book delivers a contribution to the sociological study of a fascinating and important social issue. Any sociologist interested in flag desecration issues has to start with Welch's work, this book and the author's many related articles. The empirical sections of the study, especially the identification of the various themes and players in the confrontational battle between First Amendment rights and the protection of fundamentally held beliefs and values, make for an interesting read."
--Professor Mathieu Deflem, Purdue University. Quoted in American Journal of Sociology.

"Is the American flag 'nothing but a piece of cotton with a little bit of paint,' or is it a sacred object whose desecration justifies mob action and criminalization by the state? In addressing these opposing views, Michael Welch marshals an arsenal of concepts that do justice to C.W. Mills's faith in the sociological imagination. Consistent with Mills, the story develops along historical, social structural, and biographical lines. The historical analysis is built around, and provides a cogent illustration of, a social constructionist perspective . . . Overall, this is an interesting and informative book that is clearly written at a level accessible to most undergraduates. By reading it they will learn some history, some law, some sociological theory and methods, and perhaps some idea of how to tie these together. Welch is certainly not value free, but I cannot find any place where his opposition to flag protection statutes mars his analysis. Indeed, he not only shows how precarious free speech is but also reveals that it needs to be constantly affirmed if it is to be maintained."
--Professor Sheldon Ungar, University of Toronto. Quoted in Journal of Criminal Justice and Popular Culture.

"For Michael Welch, a sociologist, JOHNSON [the landmark flag burning case] really is just a springboard from which he launches into an examination of the larger social forces at work in society, particularly since the 1980s. He treats the phenomena here as instances of efforts at ‘social control,’ and ultimately assesses it from the perspective of a theory of ‘moral panic.’ Welch approaches the subject with a normative posture, making clear that he thinks that flag burning is constitutionally protected, and that he has little sympathy for those who seek to outlaw it. But Welch is less even-handed in his treatment of the protagonists, at times treating the forces of ‘social control’ with barely concealed contempt.

[Compared to other works, i.e., Goldstein], Welch's work is more social-scientific in framework and style.

Welch demonstrates the extraordinary [news] coverage the JOHNSON decision received, putting the issue firmly in the laps of Americans who, predictably, were shown in public opinion polls to believe that flag burning was not protected by the First Amendment and that an Amendment was needed to protect ‘Old Glory.’ Welch focuses a chapter on this phenomenon, doing content analysis of newspaper coverage of the controversy. He finds the reportage roughly balanced between advocates of flag protection and defenders of speech, but notes that editorials were strongly opposed to protective legislation.

In framing his analysis in sociological theory, Welch sometimes gets trapped in jargon that would entomb all but the initiated, but he does make clear parallels between the flag controversy and the larger dimensions of the kultenkampf of which some see the battle over flag burning to be a part. However, a decidedly ‘left’ perspective drives Welch's analysis. In Justice Antonin Scalia's terms, Welch ‘takes sides in the culture wars, [and he] tends to be with the knights rather than the villeins--and more specifically with the Templars.’ (ROMER v. EVANS 1996: 652) The ideological sharpness of Welch's point of view may put off a number of readers. Further, seeing this controversy through the lens of a sociologist, his treatment of the events at hand may devalue both the fluidity of American political processes and the occasionally impressive autonomy of their legal institutions. In so doing, it may overly discount the breadth of civil liberties our curious socio-political arrangements make possible. That said, he places the controversy-which, given the reaction to a Court decision with few policy implications, seems minor compared to other issues-in its larger context, enabling those of us who focus on the political to appreciate some of the profound social forces at work here. Symbols, though intangible, often tie a people together; their treatment can sometimes drive them apart."
--Professor Joseph F. Kobylka, Southern Methodist University, quoted in Law and Politics Book Review.

Michael Welch's book examines the flag burning controversy, a profoundly sociological issue that has received insufficient attention from sociologists. The book's goal, therefore, is to demonstrate the sociological significance of this topic. While most of its empirical illustrations focus on responses to the putative threat of flag burning in the late 1980s, the book also provides a historical survey of flag burning and flag protection efforts in the United States dating back to the Civil War. In fact, the term "flag burning" stands in for a variety of actions and failures to honor the flag properly. For instance, Welch describes the 1917 case of a Montana man who was arrested after refusing to submit to a mob that attempted to force him to kiss a flag; Welch also notes that by 1940 some 200 schoolchildren in twenty states had been expelled from school for failing to salute the flag while reciting the Pledge of Allegiance. The flurries of flag protection efforts that have periodically emerged over the last century are, therefore, not entirely unlike witchhunts and inquisitions of other times; in fact, the author refers to the flag burning controversy as a "moral panic." Not surprisingly, these periods of "panic" often seem to coincide with wars and other national crises.

Although Welch notes that the flag controversy is both semiotic and ontological, most of his discussion focuses on what the flag symbolizes. Flag desecration is therefore con- structed not simply as vandalism, but as an affront "to the republic for which it stands." Interestingly, though, the act of burning a flag is considered a crime only under certain con- ditions. For example, while Welch recounts examples of radical Communist activists who were arrested for burning flags, he also notes that the proper way to dispose of an old torn flag is actually to bum it. The message is clear: Who bums the flag, and why, is central to the understanding of flag burning as a problem. Drawing on the concept of "moral panic" allows him to show how the construction of the issue rests on hostility toward those "folk devils" responsible for the threat (i.e., the flag burners). His discussion also stresses that the construction of the "panic" provides an opportunity for the exercise of social control, thereby serving to maintastate and ruling elites. Although Welch notes that the flag controversy is both semiotic and ontological, most of his discussion focuses on what the flag symbolizes. Flag desecration is therefore constructed not simply as vandalism, but as an affront "to the republic for which it stands." Interestingly, though, the act of burning a flag is considered a crime only under certain conditions. For example, while Welch recounts examples of radical Communist activists who were arrested for burning flags, he also notes that the proper way to dispose of an old torn flag is actually to bum it. The message is clear: Who bums the flag, and why, is central to the understanding of flag burning as a problem. Drawing on the concept of "moral panic" allows him to show how the construction of the issue rests on hostility toward those "folk devils" responsible for the threat (i.e., the flag burners). His discussion also stresses that the construction of the "panic" provides an opportunity for the exercise of social control, thereby serving to maintastate and ruling elites.

Whereas flag desecration can signify the renouncement of national identity and participation in the collective, flag burning can also be the ultimate statement of support and pride in American freedoms. Welch's description of Abbie Hoffman's antics at the HUAC hearings, which included wearing a shirt made out of a flag, is particularly sociologically rich. While Hoffman was clearly a countercultural figure intent on defying authority, he was also saying to those present, "I'm more American than you."

Clearly, however, no single book can explore all the sociological aspects of any given issue. Thus, while this book may not have provided the definitive sociological analysis of flag burning, it does offer a rich case for others to analyze using additional concepts and theoretical approaches.
--Professor Rachel L. Einwohner, Purdue University, quoted in Contemporary Sociology