WASHINGTON -- With the flag-burning controversy still smoldering, the Supreme Court balked yesterday at a suggestion that federal prosecutors might yet pursue criminal charges against those who destroy America's emblem in protest.
In a brief order, the justices told a federal appeals court to reconsider a ruling that had given prosecutors a new basis for punishing those who burn the flag as part of a political
From all appearances, the justices' action was unanimous -- thus marking the first time that the newest member, Justice David H. Souter, had taken any part in the angry controversy that had split the court 5-4 before he got there.
The court did not reveal how it voted, but the action would have required approval of at least five justices. No dissents were noted.
Under the lower court ruling set aside yesterday, charges of
flag-desecration could be pursued if officials
feared that a flag burning would provoke others on the scene to engage in violence or vandalism.
Twice in the past 15 months, the Supreme Court had ruled that it is unconstitutional to prosecute those who destroy the flag during a political protest because that would interfere with the constitutional right of free speech.
The second of those rulings came June 11, raising serious doubt that anyone could ever be prosecuted for violating the federal flag-desecration law that Congress had passed after
the Supreme Court's first ruling, in 1989, protecting flag burners.
It was the second decision that the justices yesterday said must be taken into account by the 8th U.S. Circuit Court of Appeals, in Minneapolis, in reconsidering the conviction of William C. Cary Jr., 23. Mr. Cary was convicted under the old federal flag-protection law, but the court has found little difference between that one and the new one.
Mr. Cary had joined in a protest march in Minneapolis in 1988, when demonstrators objected to the send
ing of U.S. troops to Honduras to support the contra rebels fighting the Nicaraguan government. When the marchers reached a military recruiting center, Mr. Cary burned a flag and threw the flaming cloth into an alcove of the center.
Before he did that, another protester had broken windows of the center and had shot fireworks through the windows.
Mr. Cary was arrested and prosecuted for showing "contempt" for the flag by destroying it. But, after his trial, the Supreme Court's first ruling
on the subject came down, saying that prosecution for that reason would be unconstitutional.
At that point, prosecutors shifted ground, and argued in an appeal to the Circuit Court that Mr. Cary's conviction could be upheld anyway because his action posed a threat of further physical violence. That approach would create a fairly wide loophole for prosecutors to use, and the loophole got the Circuit Court's approval in its decision Feb. 26.
The federal government urged the Supreme Court to simply leave Mr. Cary's conviction -- and the prosecution loophole -- intact, by denying review. The court silently rejected that suggestion in telling the Circuit Court to reconsider (Cary vs. U.S., No. 90-5183).
The justices also took several other significant actions yesterday:
* By turning aside appeals by 34 states, including Maryland, the justices all but blotted out any efforts by states to stop airlines from using deception in advertising supposedly cheaper airfares.
State attorneys general had banded together in a vow to force airlines, in their ticket ads, to make full disclosure of all the charges that are added to the base ticket price. But the airlines went to court, and argued successfully that the federal government alone has power to police any deceptive tactics toward air passengers. (Mattox and California Attorney General vs. Trans World Airlines, Nos. 90-221 and 90-232.)
* The court cleared the way for federal prosecutors to make use of the tough 1970 anti-racketeering law against peddlers of allegedly obscene magazines and films. Over the lone dissent of Justice Byron R. White, the court refused to review the first case in which the rackets law was used against a distributor of sexually explicit items (Pryba vs. U.S., No. 89-1902).
And in other actions, the court ruled unanimously, but without a written opinion, that the federal Voting Rights Act requires states covered by that law to get federal government clearance before creating any new state judgeships; it allowed police departments to discipline male officers for wearing decorative ear studs, even while off-duty; and it agreed to decide whether it is unconstitutional for a judge to impose a death sentence in a murder case after prosecutors had told the accused they would not seek such a penalty.