Flag Desecration Amendment

The Flag Desecration Amendment is a proposed amendment to the United States Constitution that would prohibit the desecration of the US flag. The text in the amendment states:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

It is the first proposed amendment since the Eighteenth Amendment that would restrict freedoms in the United States Constitution and the first in US history that would amend the Bill of Rights' First Amendment's freedom of speech protection.

The issue of flag desecration came to front of politics when in 1984, Gregory Lee Johnson was arrested for burning an American flag during the Republican National Convention in Dallas, Texas. He was charged under Texas' law prohibiting the desecration of respected objects. After his conviction, he appealed in the Court of Appeals for the Fifth District of Texas, but lost. He then appealed in the Texas Court of Criminal Appeals, which he won on the grounds that flag burning in protest was protected speech under the United States Constitution. The State of Texas then appealed to the Supreme Court of the United States, in Texas v. Johnson. By a 5-4 vote, with majority opinion including Justices William Brennan, Thurgood Marshall, Harry Blackmun, the conservative Antonin Scalia, and a concurrence by Anthony Kennedy, the Court upheld the right to desecrate the flag in protest found by the Texas Court of Criminal Appeals. Justice William Brennan wrote the opinion for the Court, stating, “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.”^[1]

The ruling overturned the flag desecration laws in 48 states. Shortly afterward, Congress passed the Flag Protection Act in response to the ruling. The text of the Act read:

(a)

(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.

(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled.

(b) As used in this section, the term "flag of the United States" means any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.

(c) Nothing in this section shall be construed as indicating an intent on the part of Congress to deprive any State, territory, possession, or the Commonwealth of Puerto Rico of jurisdiction over any offense over which it would have jurisdiction in the absence of this section.

(d)

(1) An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order issued by a United States district court ruling upon the constitutionality of subsection (a).

(2) The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal and advance on the docket and expedite to the greatest extent possible.^[2]

The Act, however, was overruled in another Supreme Court ruling known as United States v. Eichman (1990), again by a 5-4 decision, protecting flag desecration in protest as an act of free speech.

Years later, the 104th Congress attempted to amend the Constitution to prohibit flag desecration by introducing the amendment in the House and Senate. In the first attempt, in 1995 the amendment passed the House 312-120, but failed in the Senate 63-36, falling four votes short of the necessary amount. In 1997, the amendment passed the House 310-114, but was not brought up for a vote in the Senate. In 1999, it passed the House 305-124, but failed again in the Senate 63-37. In 2001 and 2003, it passed the House 298-125 and 300-125 respectively, but was not brought up for a vote in the Senate. The 109th Congress was the closest that Congress got to passing the amendment, with the House voting 286-130, but falling one vote short in the Senate, 66-34.^[3] Overall, the support in the Senate is slightly increasing, but support in the House in on the decline.

The Flag Desecration Amendment is supported by conservatives and lobby groups thereof. Some arguments for the Flag Desecration Amendment include:

1. The flag of the United States is a national symbol of freedom. Flag burning should be prohibited because of its unpatriotic nature. Because it the most important symbol for the United States, it should be protected.

2. Burning the flag shows flagrant disrespect for the country. When a person burns a flag, it sends out a message to the people that this person does not like the country or the principles it was founded on. It is extremely offensive not just to the people, but to the country itself.

Arguments against the Flag Desecration Amendment are made by liberals, several veterans,^[4] and other groups thereof. Some arguments made are:

1. The Amendment would restrict people's freedom. Burning a flag in protest is indeed disrespectful to the country, but the prohibition of it would disrespect freedom.

2. Flag burnings are rare. The number of flag burnings in the United States is rare, with only 45 cases of it in US history.^[5] The number of flag burnings have generally been non-existent in recent years, especially because of the new wave of patriotism that came after 9/11. The number of incidents in 2003 were six, in 2004 three, and 2005 twelve, most being cases of vandalism.^[6]

3. It would put the country at par with the totalitarian regimes of other countries. Some countries that have bans on flag desecration include China, Cuba, Iran, and North Korea. The people who make this argument believe that the proposed Amendment would lower the United States to their levels, though many democratic countries such as France, Germany, and Italy also have bans on flag desecration.^[7]

4. The wording in the Amendment is loose. Because the Amendment prohibits desecration of the flag, the word could mean anything, from Boy Scouts burning it in respectful retirement to blowing one's nose on a handkerchief that had the flag imprinted on it. The word "flag" is also vague, because it could also mean anything from a drawing to an imprint on a T-Shirt.

According to polls recorded by the Pew Research Center from other sources, an overwhelming majority of people believe that burning the flag should be a criminal offense, but the majority disappears when the question asked is whether flag burning should be illegal as a form of protest, to which 45% responded "Yes," and 54% responded "No."^[8] The support is not as high as it was when the Amendment was first introduced and public support continues to decline today.^[9]

A couple of quotes made by those who support and oppose the Flag Desecration Amendment include:

"I was asked this afternoon by a large body of media: Is [banning flag desecration] the most important thing the Senate could be doing at this time? I can tell you, you're darn right it is." - Orrin Hatch, Republican Senator of Utah^[10][11]

"In 1989 the Supreme Court, in response to a flag burning by a communist, amended the Constitution by inserting flag burning into the Bill of Rights. Their decision took away a fundamental right of the American people, a right we possessed since our birth as a nation, the right to protect our flag. We believe that decision was an egregious error and distorted our Constitution. We do not believe the freedom to burn the American flag is a legacy of the freedoms bestowed on us by Madison and Jefferson and Washington and the other architects of our Constitution. To distort the work of these great men, to put flag burning side by side with pornography as protected speech, is outrageous. Since 1994 the Citizens Flag Alliance has petitioned the Congress for the proposed amendment. With the help of millions of people and an overwhelming majority of U.S. lawmakers, it has come within one vote of congressional approval. With full determination to meet its objective of returning to the people their right to protect the flag of the United States, the Citizens Flag Alliance will continue its pursuit of the amendment in the 110th Congress. We encourage those who support this objective to take their concerns to all federally elected officials, urging them to adopt the amendment and let the people decide, through the process of ratification, the fate of their flag." - Citizens Flag Alliance's reaction to the failed 2006 vote for the Amendment in the Senate^[12] (Note: there is no fundamental right to protect the flag written in the United States Constitution)

"As Richard Savage of Bloomington, Illinois wrote to me, 'I am a Vietnam veteran and Republican. . . . Those who would burn the flag destroy the symbol of freedom, but amending the Constitution would destroy part of freedom itself.' Mr. Savage is right, which is why I will vote against this amendment." - Barack Obama, Democratic Senator of Illinois^[13]

"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. I would not amend that great shield of democracy to hammer a few miscreants. The flag will still be flying proudly long after they have slunk away."^[14] - Colin Powell, Joint Chiefs of Staff

"That proves that I am right. In my country we are not afraid of freedom, even if it means that people disagree with us." - James H. Warner, former Marine during the Vietnam War, after being shown by Viet Cong interrogators a photo of Americans burning a flag and being told that his cause was wrong^[6]

"Real patriotism cannot be coerced. Our freedom to speak was attacked — not our flag. The former, not the latter, needs the protection of our Constitution and our laws." - Former Senator Bob Kerrey, Democrat of Nebraska^[15]