|The West Virginia Lawyer
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
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
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
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,
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
Give me a flag and I'll wave it proudly. But it should not be used as a
shroud for ideas.