Flag Burning and Protecting Speech

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June 14, 2009 by D Stack

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech (except to protect the flag of the United States from desecration), or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Today is Flag Day. I love the American flag and what it stands for. I don’t think particularly highly of someone who burns our flag as a form of protest. But I absolutely believe that desecrating the flag, so long as done in a way not to physically endanger others, should remain a legal act of protest.

My high school American history textbook had a copy of the US Constitution in the back. It was marked up to show portions of the document which had changed, such as the method for electing president, terms of office, etc. The text above gives you an idea what the First Amendment to the Constitution would look like should one of the flag burning amendments that comes up every year between Flag Day and Independence Day be passed.

The Supreme Court has consistently ruled against any flag protection law, indicating they run afoul of the First Amendment. A flag protection amendment would give congress the power to pass laws to protect the American flag from desecration.  This illustrates why amendments were designed to be difficult to pass — you can put anything into an amendment. You could restore slavery, strip women of the right to vote, establish an official religion, require men to always wear ties in public. The passage of Proposition Eight in California, amending the state constitution to make same-sex marriage impossible, illustrates the power of an amendment. Fortunately the federal constitution is far more difficult to amend then California’s.

Why pass such an amendment? Senator Grassley of Iowa, sponsoring an amendment this year, has stated that he disagrees with the Supreme Court’s view of flag burning as a form of speech, stating that the First Amendment was intended to protect only verbal speech (a view I most certainly do not share). Furthermore he states:

We think that burning a flag is desecration of the flag and that we should not desecrate the flag that there’s been a lot of bloodshed by our veterans and people in uniform to protect the flag as a symbol of our country.

Personally I agree that burning a flag is desecration and we should not desecrate our flag. But I strongly disagree with the idea that we should make it illegal to do so. Indeed, I feel doing so devalues what the flag stands for. Our flag stands for our values, our freedoms, our people, our government. We weaken those freedoms by passing a law to protect the flag. I would argue that a flag protection amendment also desecrates the flag by diminishing our freedoms. It seems frightening to say there are acts of protest which do no physical harm to anyone for which you can be deprived of your freedom.

Then there is the practical side. What is a flag? If I make my own flag with 51 stars, is that technically an American flag? What if I draw one in a notebook and throw it out? What if I wear it as on a t-shirt or put it on a napkin (flag codes frown on such uses of the flag). And what if I were to protest the amendment by burning copies of the Bill of Rights?

In 1999 Colin Powell made an excellent case for not passing such an amendment. In this letter he quoted a Washington Post Op-Ed piece by former Vietnam War Prisoner of War James Warner.

I remember one interrogation where I was shown a photograph of some Americans protesting the war by burning a flag . `There,’ the officer said. `People in your country protest against your cause. That proves that you are wrong.’

`No.’ I said, `that proves that I am right. In my country we are not afraid of freedom, even if it means that people disagree with us.’ The officer was on his feet in an instant, his face purple with rage. He smashed his fist onto the table and screamed at me to shut up. While he was ranting I was astonished to see pain, compounded by fear, in his eyes. I have never forgotten that look, nor have I forgotten the satisfaction I felt at using his tool, the picture of the burning flag, against him.

We don’t need to amend the Constitution in order to punish those who burn our flag. They burn the flag because they hate America and they are afraid of freedom. What better way to hurt them than with the subversive idea of freedom? Don’t be afraid of freedom, it is the best weapon we have.

(James Warner, `When They Burned The Flag Back Home,’ The Washington Post, p.A25, July 11, 1989.)

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