As the Supreme Court has repeatedly explained since 1931 when it first applied the First Amendment to a flag statute, the non-verbal, peaceful use of the flag to make a political statement, whether it be by flying, saluting, or burning, is fully protected under the First Amendment’s guarantee of free expression. That is why, since 1931, the Supreme Court has consistently struck down flag statutes requiring students to salute the flag, prohibiting flying a “red flag,” and prohibiting burning the U.S. flag. In doing so, the Court has held that it is a “bedrock principle underlying the First Amendment…that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive and disagreeable.” The First Amendment is designed precisely to protect unpopular forms of peaceful expression and political dissent such as flag burning, although these acts are highly offensive to almost all Americans.
It is entirely unnecessary to amend the Constitution to punish most incidents of flag desecration. Most of these acts, including burning or soiling a flag, are typically punishable under public burning, public health, theft or destruction of public property statutes. In addition, any offensive expression, including flag desecration, performed for the purpose of inciting violence or a breach of the peace and that is likely to produce an immediate danger is already punishable consistent with the First Amendment.
Moreover, flag burning is exceedingly rare in our country and the voluntary love of flag and country is simply not in jeopardy. In fact, in the wake of the September 11th attacks, we have seen an outpouring of support for the flag and public displays of the flag. The Congressional Research Service found, on average, less than eight flag desecration incidents per year from 1990 to 1994. Public repudiation of persons desecrating the flag has been widespread and clear.
The Amendment is phrased in broad and vague terms that could have unintended consequences including censorship of images of the flag in works of art or in commerce or advertising that contains physical representations of the flag. Display of the flag in a Jasper Johns painting, above a car dealership, or on a billboard could constitutionally be criminalized under the amendment. The existing Flag Code currently prohibits the use of the flag as “wearing apparel” or “as a costume or athletic uniform,” as well as use of the flag “for advertising purposes in any manner whatsoever.” (36 U.S.C. Section 176) Where past and present sponsors of the amendment disagree over whether adopting the amendment would criminalize such behavior, ironically, the proposed amendment could be read to permit prosecutions not only of protesters, but of individuals who do not intend disrespect for the flag.
According to annual Freedom Forum polls, a majority of Americans opposed such an amendment when they knew that it would be the first in our nation’s history to restrict our First Amendment freedoms of speech and expression. In 2002, so soon after the terrorist attacks on September 11, 2001, 59% of Americans opposed such an amendment. These findings have remained consistent over time, even when Congress has been most active on pushing the flag amendment.
Congress has already debated and rejected a constitutional amendment on the flag several times, most recently failing to go to the state legislatures after falling one vote short of Senate passage in 2006.
Supporters of the amendment argue that the flag has been sanctified by the blood of thousands of U.S. veterans who have fought across the world and thus must be protected from desecration. But other veterans offer a different point of view: Gary May, a highly decorated former Marine who lost both of his legs during combat in Vietnam, serves as the Chairman of Veterans Defending the Bill of Rights, a coalition of veterans who oppose the proposed flag amendment. “The pride and honor veterans like me feel is not in the flag itself, but in the principles the flag stands for and in the people who have defended them,” said May in his testimony before the Senate Judiciary Committee in 1999. Another prominent veteran – General Colin Powell, a former United States Secretary of State – also opposed the amendment in 1999. “The First Amendment exists to insure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous,” Powell stated. “I would not amend that great shield of democracy to hammer a few miscreants. The flag will be flying proudly long after they have slunk away.”
At a time when we are working across the globe to secure the right of everyone to be free from totalitarian regimes, it is important that we distinguish ourselves from such states as The People’s Republic of China, the former Soviet Union, and Iran – countries that fear political dissent and imprison dissenters for desecrating their national flags. We do not need to coerce patriotism in America and we should not let a handful of offensive individuals cause us to voluntarily surrender the very freedoms that make us a beacon of liberty for the rest of the world.