With Memorial Day a week ago Monday, Flag Day coming up a week from Thursday, and Independence Day next month, it's an appropriate time to talk about demonstrations involving the United States flag - most notably, flag burning in protest of US policies.
For the record, I'm a registered Republican and a former military officer. I swore to support and defend the Constitution against all enemies, foreign and domestic. But flag burning is not unconstitutional. In fact, I believe that a Constitutional amendment specifically outlawing flag burning would be unconstitutional.
In my research on this topic, I found a website that not only covers the reasons for my stand on this issue, but is a great resource for anyone seeking to understand the history and legal facts behind flag burning. Aptly titled "The Flag Burning Page", it's written by Warren S. Apel, "a political activist and writer, [who has] been running [it] for nearly 10 years now."
As he clearly states:
"The purpose of this page is not to encourage flag burning. Nor is it to promote wanton desecration of a symbol which many hold dear. It is, rather, a standing protest to any amendment to the U.S. Constitution which would allow Congress or the States to pass laws against flag burning - laws that the Supreme Court has already said are unconstitutional."
He began the page in 1995 in response to the proposed "Flag Protection Amendment", which was introduced to the 104th Congress - where it passed in the House and was narrowly defeated - by three measly votes - in the Senate. It has since been re-introduced twice more; both times, it passed the House and was defeated by a small margin in the Senate.
Why would a military veteran be opposed to a "Flag Protection Amendment"?
First and foremost, because I support the First Amendment.
As Mr. Apel put it: "We don't need an amendment to the constitution. In America, we don't put people in jail for protesting against the government. That's what they do in Afghanistan, China, or Iraq."
And even more eloquent were the words of the State in the Supreme Court decision in the case of
Texas V. Johnson (1989): "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
I love living in this country and I was proud to serve in its military. I took my oath seriously -- and in my estimation, part of upholding and defending the Constitution is to preserve the essence of it: The Bill of Rights. Symbolic gestures of protest such as flag burning are not worth prosecuting.
Mr. Apel's page provides a plethora of information in itself, as well as links to other sources of information. Apart from objections to the proposed amendment on the basis of weakening the First Amendment, he cites other fascinating points in
his FAQ, such as:
- The word desecration implies that the flag is sacred, and the government (separation of church and state) can't say that something is sacred." (I'm sure you can believe that I appreciate this argument in particular.)
- Burning flags is "the only way to respectfully retire them. So when a protester gets arrested for it, it's not the BURNING that they're being arrested for. It's the thoughts in their minds at the time. In America, we shouldn't arrest people for their thoughts."
- "People who DO burn the flag in protest do it for one reason more than any other: protest of anti-flag-burning laws."
- "If I was arrested under the new flag burning law, the first legal argument I would make would be one of selective enforcement."
Perhaps most entertaining is the point that if the proposed amendment were to pass, the federal government and the state governments would be free to define the term "flag" and outline punishable offenses as they chose. For example:
From 1947-1968 in the District of Columbia, the following language concerning the US flag was part of
4 USC Section 3: "...publicly mutilate, deface, defile or defy, trample upon, or cast contempt, either by word or act, upon any such flag, standard, colors, or ensign, shall be deemed guilty of a misdemeanor..." That's right - expressing dislike for the colors red, white, and blue could be construed as "casting contempt" under this law.
In 1968, the code was amended (now with more legalese!) such that I won't bother quoting it here, but the
definition of the term "flag" currently in effect in the District of Columbia is as follows: "The words flag, standard, colors, or ensign, as used herein, shall include any flag, standard, colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, colors, or ensign of the United States of America or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, colors, standard, or ensign of the United States of America."
Basically, anything that walks, talks, or quacks like a flag must be a flag. And if what you're doing to that flag or doing with that flag is construed as "casting contempt" upon it, then you're in violation of the law.
Most people don't want to burn the flag. Those who do are most likely protesting laws against doing so. It's a symbolic gesture that neither compromises national security nor indicates treason. There is no justifiable reason to commit our tax dollars to prosecuting and imprisoning citizens for speaking their minds.
