The First Amendment Center has produced an excellent report analyzing the most recent attempt to pass a constitutional amendment that would permit Congress to ban the “desecration” of an American flag. The proposed amendment was recently passed by the U.S. House of Representatives, and, this time around, it stands a very real chance of becoming the law of the law of the land. The report, titled Implementing a Flag Desecration Amendment to the U.S. Constitution: An End to the Controversy or a New Beginning?, was prepared by eminent First Amendment attorney Robert Corn-Revere and contains a fabulous summary of the history of the flag desecration debate; it covers in fascinating detail events from the Civil War to the present. The report also presents by far the most detailed analysis I have seen of what a flag desecration amendment would mean in both practical and legal terms. As the title suggests, the debate concludes:
Passage of an amendment will not alone determine this outcome; the result will be affected by the implementing laws and judicial decisions applying them. History suggests that lower courts will issue conflicting decisions until the matter is finally presented to the Supreme Court in an appropriate case, or cases. Even then, there is likely to be a residue of uncertainty that could encourage selective prosecutions, just as some law enforcement officials continue to prosecute flag desecration today.
Adopting a constitutional amendment would only be the beginning of a long series of disputes over flag desecration.
Flag desecration is one of those issues that give pause even to people who are otherwise very serious about protecting free speech. But no matter where you fall in this debate, I urge you to read the report—it is a sober and thoughtful analysis, and even if you leave the report with your opinion unaffected, I can all but guarantee that you will learn some new facet of the debate you did not know before.
As a matter of law, FIRE may not lobby, and as a related matter of policy, FIRE tries to refrain from commenting on forthcoming legislation. Nonetheless, I think it is important to relate what I see as a very likely consequence of the passage of a flag desecration amendment: there will be, at least for a time, a huge escalation in the amount of flag desecration, especially on college campuses. While FIRE deeply respects the rights of all Americans, it is simply a fact that some people (young and old, right and left, student and faculty) are in a constant search of a machine to rage against. A flag desecration amendment (and any anti-flag burning law that would arise from it) would be a dream come true for an artist looking for an easy way to make the papers, for an anarchist attempting to draw attention to his disenchantment with encroaching government, and even for those who are patriotic in their own mind to attract attention to any range of social causes in which they think America is falling short of its ideals. And it will not be a one-time opportunity, either. Any law arising from a flag desecration amendment will have ambiguities and tensions with the First Amendment that may take decades to sort through. Is it illegal to burn a flag with 51 stars? How about a flag on a postcard? Is it “desecration” for Jessica Simpson to wear an American flag bikini on the cover of GQ?
The report cites an interesting critical point of view: “Professor Richard D. Parker of Harvard Law School dismisses what he calls the ‘wacky hypotheticals argument’ as ‘mean spirited’ and a ‘familiar way of trivializing the amendment’s effects.’”
True, a flag desecration amendment is not the same thing as an anti-flag desecration law; the amendment would merely allow for the passage of an anti-flag desecration law and how bad the fallout from a flag discretion amendment would be would largely depend on how narrowly the law or expansively the law will be written. However, dismissing the likelihood of “wacky hypotheticals” arising from any law is strange for anyone who studies, let alone teaches, law. In your first year of law school, you discover not only that the wackiest combinations of facts are possible, but that they seem to happen all the time (anybody ever hear of the “hairy hand” case?). As the report eloquently points out, along with compelling historical evidence, “experience with previous flag-desecration laws and the questions they raised suggest that the hypothetical examples may not be so wacky after all.”
Furthermore, what objections like Parker’s miss is that if a flag desecration law becomes reality, no matter how narrowly it is written, there will be an entire class of attention seekers who will be all too willing to provide every possible permutation of law-straddling hypotheticals imaginable. In the process, some will likely be punished and others exonerated, but all will have massively increased the audience for their message because of the notoriety that arises from challenging a controversial new law in some clever or sensational way. And, trust me, college students, with their flair for insubordination (a quality that we sometimes find to their credit), will be leading the way. In the meantime, the debate will only become more nuanced, with existing divisions growing deeper as some convictions fail and others possibly send people to jail.
Bottom line: far from promoting the sanctity of the flag, the amendment could actually make things much, much worse, both for our country and for our flag. I recognize this may not be a very popular opinion, but, to quote FIRE’s favorite Supreme Court opinion, Barnette, “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.” I hope we continue the tradition of confidence and courage in our beliefs embodied in Barnette and let our speech be our weapon against expression we despise, rather than resorting to rewriting the Bill of Rights.