Ringer Law Office

Ringer Law Office

Darrell W. (Dan) Ringer, JD, MBA

Morgantown, WV


President's PageThe West Virginia LawyerJuly 1999
Darrell (Dan) Ringer

President's Page

by Darrell W. (Dan) Ringer

"Good laws lead to the making of better ones, bad ones bring about worse."
Jean Jaques Rousseau
"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."
Texas v. Johnson, 491 US 397 (1989)
"The Congress and the States shall have power to prohibit the physical desecration of the flag of the United States."
House Joint Resolution 33

Recently the State Bar had the pleasure of welcoming American Bar Association President Phillip Anderson to this year's annual meeting. While here he identified the proposed flag desecration amendment as the most serious current threat to individual freedom. I don't know if I agree with that characterization, but I would agree that the amendment is a very serious formal threat. The amendment is not the result of a careful study of an unmet legal problem. Rather, it is a reaction to a politically unpopular judicial decision.

In Texas v. Johnson, 491 US 397 (1989), the U.S. Supreme Court ruled that burning an American flag is expressive conduct, protected by the U.S. Constitution. On February 24, 1999, Representatives Randy Cunningham (R-CA) and John Murtha (D-PA) introduced a constitutional amendment to prohibit "physical desecration" of the American flag. This idea comes around every year or so. This year there are 277 co-sponsors as of this writing, including all 3 West Virginia members of the House.

We frequently debate about the limits of certain rights, or whether something actually is a right. But according to President Anderson a prohibition against flag desecration would be the first instance in our history of an acknowledged right being taken from Americans.

The first time I can remember someone burning an American flag in anger was during the 1950's, when then Vice-president Nixon's visit to South America was protested - by South Americans. The burning of American flags in other countries became so popular that it could have been made an Olympic event. Of course it continues today -- but only in "bad" countries. The first time I remember American citizens burning flags was during the Viet Nam War. Clearly these occasions were political protest.

I, and many of my friends, have served in the military. Many of us have served in combat assignments. Many have fought, and some died. We served and fought because we were ordered to, or because it was the right thing to do, or both. Some fought to save their own lives. No one fought, or promised to fight "for the flag," but for what the flag symbolized.

The American flag is a symbol of an idea. More like an ideal, actually. The ideal is a perfect America. But those of us who work with the laws of our state and nation know how far from perfect America is. Our form of government doesn't always achieve perfection, but it is an admirable and excellent effort.

The flag desecration amendment is not so admirable, however. It seeks to directly prohibit a form of political expression, and political expression (and dissension) is an essential part of societal evolution.

We routinely criticize other nations for their treatment of political dissidents. We speak in terms of ideological crimes and crimes of conscience, and claim as a nation to be above such things. When we refer to political dissidents in the "bad" countries we honor them. When a Nelson Mandela or a Chinese student is imprisoned, or a Kosovo civilian killed or dispossessed we call for economic sanctions or war. We condemn the actions of what we describe as tyrannical or despotic governments. As a nation we appear to believe, almost as an article of faith, that citizens of nations with "bad" governments must be allow to speak out.

But not here. We don't have a "bad" government. It should not be criticized. Should it?

Flag desecration would be a political crime, not a crime of violence, nor against property. The door would be open - at the top of a very slippery slope. Would we then make it a crime to criticize the president, or Congress, or the city council?

Frankly, the language used in the proposed amendment is language begging for a series of nasty court challenges. The on-line Merriam-Webster dictionary defines "desecrate" as "1: to violate the sanctity of, profane; 2: to treat disrespectfully, irreverently, or outrageously." Is a flag sticker on a rusty car desecration? How about a flag hanging in a "gentlemen's club"? A flag patch sewn on the hip pocket of a pair of jeans? Do these things sound familiar?

Sadly, I have to recognize that, from time to time there have been several groups who might have been justified in making fairly aggressive protests about their treatment by the government of our nation. African Americans, Native Americans, the handicapped, veterans, children and women are a few groups that spring to mind. Whether they should burn a flag is perhaps debatable, but their right to protest their treatment is undeniable.

I love my country. Most lawyers that I know do. But if we have to pass a constitutional amendment in order to physically protect its national emblem, then I have to wonder whether its safety would result from respect or from fear.

As Yogi Berry is reputed to have said, "This is like deja vu all over again." We are creating a very real possibility of McCarthy-like accusations of "disrespect" and "desecration."

It has been suggested that the House of Representatives, being a highly politically reactive body might pass this amendment; but the Senate has too much sense, or is too politically detached from the winds of popular pressure to do so. Heck, even if they did, it would still take 38 of the states to ratify it before it would become effective. That won't happen, will it?

Well, when this amendment last came up for a vote, in 1997, it passed the House by a vote of 310 to 114. It failed in the Senate by 3 votes. The Citizens Flag Alliance claims that, as of February 24, 49 state legislatures had "passed memorializing resolutions and asking Congress to pass an amendment and send it back to the states for ratification." The Flag Burning Page says this time "Neither side will predict the vote (in Congress)."

Because of the emotionalism that an issue such as this engenders, it is important, I suppose, to emphasize that opposing an amendment seeking to prohibit flag desecration is not the same thing as advocating flag burning. Rather, such opposition favors the freedom to express ideas. Even unpopular ones.

Give me a flag and I'll wave it proudly. But it should not be used as a shroud for ideas.