by Pieter J. Friedrich
6/30/03
Recently, and for the fifth time since 1995, the U.S. Congress has voted to pass a constitutional amendment that would "empower Congress to ban the burning or other desecration of the American flag." Thanks to many Democrats (it's not often I thank members of that party) and a handful of freedom-minded Republicans, "including Senate Republican Whip Mitch McConnell of Kentucky" who has "argued it would be a mistake to tamper with the First Amendment," this attempt to amend the Constitution is sure to fail once again.
A constitutional amendment, for those of you who don't know your legislative history, is necessary to outlaw flag desecration after a Supreme Court ruling struck down the Flag Protection Act of 1989 (read my "History of the Flag Protection Act of 1989") in U.S. v. Eichman.
The Supreme Court, for once, ruled correctly.
Taking into account the fact that flag-burning is the accepted respectful form of disposal of an old flag, the Flag Protection Act very clearly stated that it did not "prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled." This is a standard exception for legislation outlawing flag desecration.
That's thought-crime legislation. Who is to say when flag-burning is respectful disposal and when it is disrespectful protest? What if a man burned a flag in protest, was prosecuted, and defended himself by saying he was merely respectfully disposing of an old flag? Or what if the police arrested a man because they were unable to ascertain whether or not that man was burning his flag in actual respectful disposal? If the authorities are to be able to properly determine whether or not a person is burning a flag respectfully, they must know the mind of the person whose actions are suspect.
The Flag Protection Act said, "the term 'flag of the United States' means any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed." In other words, items that were not actual American flags, but that merely displayed an American flag design, could be legally destroyed for any reason.
However, if we are to prohibit flag desecration, why should we not prohibit the destruction of pictures of flags, or of napkins with flag designs? Or why should we not prohibit the citizenry from placing flag bumper stickers on their cars, and thus subjecting a representation of the flag to bad weather and filth. Or, why should we not prohibit refusal to salute the flag or say the Pledge of Allegiance? I, personally, do not salute the flag or say the Pledge of Allegiance, though I do hold the U.S. flag in high esteem. Is my refusal to participate in these actions disrespectful? And if it is disrespectful, then is it disrespectful enough to qualify as "desecration?" Where does one draw the line?
A columnist from The Christian Science Monitor said this: "Can we legislate reverence? And even if we could, do we want to perpetuate the trend, so evident in late-20th-century America, toward more and more laws reaching into areas that once were defined, and policed, by local mores and customs? Are we content to replace the inner restraints of ethics with the outer restrictions of legality?"
The Constitution protects flag desecration as a legitimate form of expression. Many people have argued that the Constitution does not protect flag desecration as it is not a form of First Amendment "speech," and so, they argue, we ought to outlaw flag desecration. Yet in outlawing the right to burn the flag in protest, we endanger our rights to display controversial signs (including graphic pro-life signs), to wear clothing of our own choosing, or to decorate public and private buildings as we choose. If flag desecration is outlawed, then what is to keep these other, often "distasteful," forms of expression from being legislated (or constitutionally amended) away because they are not actual, literal forms of "speech."
Of course, not all forms of expression are decent, and there must be some laws against public indecency...laws against public nudity, for instance. As a friend of mine once said while arguing in favor of outlawing flag desecration, freedom of expression is limited to that which is not prohibited by God's law. Yet public nudity is prohibited by God's law, and desecrating the flag is not.
Others have argued that burning the flag is treasonous, or reeks of insurrection because the flag is somehow "public property" or because burning the flag undermines the nation. Yet the flag is not "public property." I can run down to the store and buy a flag, and from that point on it becomes my "private property" to do with as I see fit. Nor is the flag, a symbol of our nation, the nation itself. The Constitution defines treason (which is roughly synonymous with "insurrection") as consisting of "levying war against [the nation], or adhering to [the nation's] enemies, giving them aid and comfort." Burning the flag does not fall under this definition, and therefore is not an act of insurrection.
Limiting the First Amendment rights of the citizenry is too dangerous to justify legislating the distasteful actions of a handful of protesters. Legislation banning flag desecration is a violation of the First Amendment, but it is also an open door to thought-crime legislation. The flag is nothing more than a piece of cloth. Most average citizens hold the flag in respect, yet it means different things to different people and it is improper that the citizenry should not be allowed to hold and express views regarding the flag which differ from the norm.
