Earnest V. Starr

"What is this thing anyway? Nothing but a piece of cotton with a little paint on it, and some other marks in the corner there. I will not kiss that thing. It might be covered with microbes."

"In the matter of his offense and sentence, obviously petitioner was more sinned against than sinning. It is clear that he was in the hands of one of those too common mobs, bent upon vindicating its peculiar standard of patriotism and its odd concept of respect for the flag by compelling him to kiss the latter—a spectacle for the pity as well as the laughter of gods and men! Its unlawful and disorderly conduct, not his just resistance, nor the trivial and innocuous retort into which they goaded him, was calculated to degrade the sacred banner and to bring it into contempt. Its members, not he, should have been punished.Patriotism is the cement that binds the foundation and the superstructure of the state. The safety of the latter depends upon the integrity of the former. Like religion, patriotism is a virtue so indispensable and exalted, its excesses pass with little censure. But when, as here, it descends to fanaticism, it is of the reprehensible quality of the religion that incited the massacre of St. Bartholomew, the tortures of the Inquisition, the fires of Smithfield, the scaffolds of Salem, and is equally cruel and murderous. In its name, as in that of Liberty, what crimes have been committed! In every age it, too, furnishes its heresy hunters and its witch burners, and it, too, is a favorite mask for hypocrisy, assuming a virtue which it haveth not. So the mobs mentioned were generally the chosen and the last resort of the slacker, military and civil, the profiteer, and the enemy sympathizer, masquerading as superpatriots to divert attention from their real character. Incidentally, it is deserving of mention here that in the records of this court is a report of its grand jury that before it attempts had been made to prostitute the federal Espionage Law to wreak private vengeance and to work private ends.As for the horrifying sentence itself, it is of those criticized by Mr. Justice Holmes in Abrams' Case, 250 U. S. 616, 40 Sup. Ct. 17, 63 L. Ed. 1173, in that, if it be conceded trial and conviction are warranted, so frivolous is the charge that a nominal fine would serve every end of justice. And it, with too many like, goes far to give color, if not justification, to the bitter comment of George Bernard Shaw, satirist and cynic, that during the war the courts in France, bleeding under German guns, were very severe; the courts in England, hearing but echoes of those guns, were grossly unjust; but the courts of the United States, knowing naught save censored news of those guns, were stark, staring, raving mad. All this, however, cannot affect habeas corpus. It can appeal to the pardoning power alone.The state law is valid, petitioner's imprisonment is not, repugnant to the federal Constitution, this court cannot relieve him, and the writ is denied."

"By far the harshest penalty for "flag desecration" in American history was handed our during World War I to a Montana man, E. V. Starr, who under the 1918 Montana law, which became the model for the 1918 federal Sedition Act (document 2.18), was given a $500 fine and a jail term of ten to twenty years at hard labor for refusing a mob's demands to kiss a flag and for terming it "nothing but a piece of cotton" with a "little paint" and "some other marks" on it which "might be covered with microbes." Considering the case on appeal, Federal district court judge George Bourquin termed the sentence a "horrifying" one that justified George Bernard Shaw's comment that American courts had gone "stark, staring, raving mad" during the war; Bourquin also labeled the mob that had assaulted Starr "heresy hunters" and "witch burners." Nonetheless, he concluded that he was powerless to intervene, because the Montana state law was clearly constitutional under the Halter precedent (document 3.25)."

"The overwhelming focus of post-Halter flag desecration enforcement on incidents with political significance is further highlighted by the clustering of cases around the period of World War I and the postwar Red Scare and World War II, which were times of intensified patriotic-nationalistic fervor and decreased tolerance for dissent. ... The most extreme penalty for oral flag desecration was handed down under Montana's draconian 1918 law: E. V. Starr was sentenced during World War I to ten to twenty years at hard labor in the state penitentiary, along with a $500 fine, for refusing a mob's demands that he kiss the flag (a favorite wartime vigilante punishment for the allegedly disloyal) and for terming it "nothing but a piece of cotton" with "a little paint" and "some other marks" on it which "might be covered with microbes."16"

"The permeability of the boundary between outlawing disrespect and compelling respect for the flag became especially clear during periods of crisis. During World War I, hundreds of people suspected of political dissidence or merely of insufficiently enthusiastic patriotism were, as in the Starr case, attacked by mobs that sought to compel them to kiss the flag, often while government officials looked the other way or joined in."

"Following the Civil War, flag protectionists targeted other forms of desecration, particularly abuses in the realm of commercialism. In 1907, the U.S. Supreme Court upheld Halter v. Nebraska, a case in which two businessmen were fined $50 for selling a bottle of "Stars and Stripes" brand beer--a violation of the Nebraska state flag desecration law. Soon the flag-protection movement would shift its focus from the commercial to the political arena in efforts to apprehend violators of flag desecration statutes. During the tense period leading up to U.S. involvement in World War I, the war itself, and the Red Scare of 1919-1920, flag-protection enthusiasts set their sights on political dissidents, especially such leftists as pacifists, labor organizers, anarchists, and communists. Interestingly, though, even mainstream citizens who chose not to consecrate the flag were subject to draconian penalties. E. V. Starr was arrested under Montana law for refusing a mob's demand that he kiss the flag and for terming it "nothing but a piece of cotton" with "a little bit of paint." For this violation, Starr was sentenced to hard labor in the state penitentiary for 10 to 20 years, along with a $100 fine (Ex Parte Starr, 1920:146-47; see Goldstein, 1995; Welch, 1999a)."

"In compliance with Section Three of the Uniform State Flag Law, subversive elements could be arrested not only for supporting the enemy, but also casting contempt upon the flag by word or deed (Guenter, 1990). In a case that demonstrates the unforgiving nature of compulsory patriotism during that period, E. V. Starr was arrested under the Montana sedition law for refusing a mob's demand that he kiss the flag and for denouncing it as "nothing but a piece of cotton" with "a little bit of paint." For that transgression, Starr was sentenced to hard labor in the state penitentiary for 10 to 20 years, along with a $100 fine (Ex Parte Starr 1920; refer to Chapter 3). Incidentally, the Montana sedition law (replete with provisions for flag protection) served as a model for the federal Sedition Act. During the First World War, several states increased penalties for flag desecration: in Louisiana and Texas violations were punishable by five and twenty-five years in prison, respectively."