Reasons to Oppose the Flag Desecration Amendment

Document Date: March 4, 2004

Talking Points on Opposing the Flag Desecration Amendment

Reasons why the flag desecration constitutional amendment is unwarranted and unconstitutional:

This amendment is injurious to one of the very freedoms the flag symbolizes: free speech. It directly empowers the Congress to engage in thought control. There is a distinct difference between real and forced patriotism. Flag burning and desecration is offensive because it is political. Experience shows that the way to fight political expression with which one disagrees is not to outlaw it, but to express disapproval.

Freedom cannot survive if exceptions to the First Amendment are made when someone in power disagrees with an expression. If we allow that, our right to free speech will depend on what Congress finds acceptable, precisely what the First Amendment was designed to prevent.

This amendment may provoke rather than diminish the very acts it purports to curtail. Our nation’s experiment with an amendment to the Constitution concerning Prohibition shows that a cure by amendment to the Constitution may itself incite harm of the very nature it seeks to prevent.

The flag desecration amendment is a solution in search of a problem. The expressive act, burning a flag, which this amendment attempts to curtail, is exceedingly rare. Professor Robert Justin Goldstein documented approximately 45 reported incidents of flag burning in the over 200 years between 1777 when the flag was adopted, and 1989, when Congress passed, and the Supreme Court rejected, the Flag Protection Act. About half of these occurred during the Vietnam War.

This amendment would be the beginning, not the end, of the question of how to regulate a certain form of expression. It empowers Congress to begin the task of defining what the “flag” and “desecration” mean. The use of the flag as symbol is ubiquitous, from commerce, to art, to memorials, such that Congress would be in the position of defining broad rules for specific applications. Congress, the courts, and law enforcement agents would have to judge whether displaying the flag on Polo jeans is “desecration,” but the Smithsonian’s recent removal of two million stitches from the 188-year old flag that inspired Frances Scott Key, is not.

The United States Supreme Court has ruled consistently that flag burning is a form of speech protected by the First Amendment. In Texas v. Johnson (1989), the Supreme Court held it unconstitutional to apply to a protester a Texas law punishing people who “desecrate” or otherwise “mistreat” the flag in a manner that the “actor knows will seriously offend one or more persons likely to observe or discover his action.” The Court found that the law made flag burning a crime only when the suspect’s thoughts and message in the act of burning were offensive, thus violating the First Amendment’s protections of freedom of the mind and freedom of speech. The next year, in United States v. Eichman (1990), the Court reviewed a Congressional statute that attempted to be neutral as to the messages that might be conveyed, prohibiting flag burning except when attempting the “disposal of a flag when it has become worn or soiled.” The Court struck down this statute as another attempt to punish offensive thoughts.

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