Pandora's Box of Flag-burning Ban

David R Hoffman

There is a new threat to freedom in America.  This threat does not come from any foreign government classified as an “enemy”, nor from any terrorist group or organization. This threat comes from the Congress of the United States. In 1989, in the case of TEXAS vs. JOHNSON, the United States Supreme Court ruled that burning the American flag was a constitutionally protected form of protest under the First Amendment’s “freedom of speech” clause, which the nation’s founders so wisely inserted into the Bill of Rights two hundred years earlier. Emotional reaction was swift, particularly amongst elected officials who sought to exploit the outcry over this ruling for cheap votes and an opportunity to trumpet their alleged “patriotism” during election campaigns.

Initially efforts were made to draft a “speech neutral” law that would survive judicial scrutiny.  When those efforts failed, attempts were made to pass a new constitutional amendment banning flag “desecration.” Fortunately, each time this proposed amendment came to a vote in the United States Senate, enough courageous Senators recognized the long-term dangers this amendment posed to the Bill of Rights, and voted against it.

Over time, as the hysteria abated, the perceptiveness of these Senators came to be more accepted in America.  A recent poll conducted by the Freedom Forum indicates that sixty-three percent (63%) of Americans oppose a flag “desecration” amendment. But whether one agrees with the Supreme Court’s ruling or not, reasoned analysis of free speech law and accepted practices demonstrates that it was built upon a logical foundation.

Those opposing the Court’s ruling claimed that the flag doesn’t “communicate”.  This argument, of course, is immediately negated by the practice of flying flags at half-staff in the wake of national tragedies, and by the accepted practice of ships at sea flying flags upside down to indicate distress.

Also, as the late Supreme Court Justice Oliver Wendell Holmes once so accurately stated, “The principle of free speech is not free speech for those who agree with us but freedom for the speech we hate.” In all free speech controversies there are at least two opposing points of view.  If the “popular” view is constitutionally protected, the other must be as well.

The method in which worn or tattered flags are disposed of provides one such point of view.  These flags are given to veteran’s groups or similar organizations where they are destroyed during reverent ceremonies.  Therefore it logically follows that the opposing point of view - the irreverent destruction of the flag - is constitutionally protected as well.

If the flag “desecration” amendment is passed, it will represent the first time in American history that the Bill of Rights will be amended to DIMINISH a fundamental right.  (Prohibition does not count, because there is no fundamental right to consume alcoholic beverages). This proposed amendment will essentially place an asterisk by the freedom of speech clause saying, “See the exception below.”

In addition, the language of the proposed amendment - “The Congress shall have power to prohibit the physical desecration of the flag of the United States” - whispers with simplicity, yet screams with ambiguity and, as such, eviscerates America’s already fragile “check-and-balance” system.

As any first year government student will confirm, it is the role of the United States Congress to pass laws, and it is the role of the courts to review, interpret and determine the constitutionality of these laws.  As such, Congress already possesses the power to pass a law prohibiting the “physical desecration” of the flag; therefore the proposed amendment is unnecessary.

But the legislative antics surrounding this amendment demonstrate that Congress is NOT requesting the power to pass laws prohibiting flag “desecration.” It is demanding the power to supersede the constitutional review process, thereby exempting certain laws from judicial scrutiny even when they clearly violate the Bill of Rights.

American history has shown that laws, practices or policies, once they are placed into effect, are rarely confined to their original intent.  The Federal Bureau of Investigation’s (FBI’s) now infamous COINTELPRO operation, for example, was originally aimed at the activities of alleged communists during the 1950s, but rapidly evolved into a policy of illegal burglaries and wiretaps, frame-ups of political activists, and even the encouragement of violence and murder, largely directed against political groups, movements or organizations that offended the rigid ideologies of the FBI’s then-director, J. Edgar Hoover.  Anti-racketeering (RICO) laws, allegedly designed to combat organized crime, were soon applied to the activities of protesters.  Even today’s so-called “Patriot Act,” initially passed to combat terrorism, was quickly expanded to incorporate other crimes as well.

So if this exception to the freedom of speech clause becomes part of the Bill of Rights, how long will it be before other exceptions or unconstitutional laws follow?  Will “freedom of religion” come to mean “except for certain religions?” Will the right to “peaceably assemble” come to mean “unless the assembly criticizes the government?” Once this Pandora’s box is opened, self-serving and opportunistic politicians will never again seek to close it.  While amending the Bill of Rights to ban flag “desecration” might bring short-term satisfaction, it is an invitation to long-term disaster.

Whenever I watch or read about the debate over the proposed flag “desecration” amendment, I am always reminded of the Dr. Seuss story, “How the Grinch stole Christmas.” In this tale the “evil” Grinch tries to stop Christmas from coming by stealing all the material trappings he thinks the holiday represents:  decorated trees, gifts, ornaments, etc.  But on Christmas day the people celebrate anyway, making the Grinch realize “Maybe Christmas doesn’t come from a store.  Maybe Christmas means a little bit more.”

Fundamental rights and freedoms also do not come from store bought flags, many of which are not even manufactured in the United States.  Fundamental rights and freedoms mean a little bit more.  So if by some malady all the flags in America were physically destroyed but the freedoms they symbolized remained unaltered, the flag’s meaning would still stand.  But if the physical integrity of every flag is preserved and the cost is the erosion of freedom, then the flag will be destroyed in a manner far more abhorrent than any physical desecration can hope to achieve.


Published Friday, June 24th, 2005 - 11:24pm GMT
David R. Hoffman is Legal Editor of Pravda.ru

A shorter version of this article recently appeared on Pravda.ru
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