Banning the Desecration of the Flag (Opinion Paper)

This is a research paper I did for my AP Government and Politics class about a proposed congressional bill that would ban the physical desecration of the United States Flag. It is written from the perspective of the ACLU, though I elected to represent them because I am passionate about civil liberties. Hopefully that passion shines through. 

---

THE BILL:
S.J.RES.17 -- Proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States. (Introduced in Senate - IS)

---

The proposed amendment, S.J. RES. 17 would prohibit the physical desecration of the flag of the United States, however, where does one draw the line? Is burning a flag desecration? Or smearing it with dirt, or just dropping it, or letting it get ripped and worn through use? Would carrying a flag with you that was torn and bloodied in battle because you see it as a symbol for your fight for our nation count as a prohibited desecration of the flag? The very idea of this proposition is ludicrous.

Here’s the real problem, how can we claim to be a nation of freedom if we make exceptions to your protected rights every time someone gets offended? Freedom cannot survive if every time someone of authority disagrees with you, they outlaw your right to express that opinion. The flag is just an object, a symbol, which has been made political by the people who revere it. This case is so ironic though, because the idea of having a nation of liberty and freedom in which everyone is allowed to express themselves, regardless of popularity, is what the very flag we’re trying to protect represents. By giving law enforcement a fuzzy definition of where they can suppress your right to express your views, you’re fundamentally defying the very liberties you are trying to invoke with the flag’s symbolism.  Moreover, by passing legislation to prevent the burning of a flag, you’re creating more problems than you solve. Since the flag was adopted in 1777, only 45 incidents of flag burning have been reported. In the words of Senator Orrin Hatch in 2005 on the issue of a similar bill; “The American flag represents in a way nothing else can, the common bond shared by a very diverse people.  Yet whatever our differences of party, politics, philosophy, race, religion, ethnic background, economic status, social status, or geographic region, we are united as Americans.  That unity is symbolized by a unique emblem, the American flag.” By creating this Bill you are bringing to people’s attention a non-issue, and inspiring crimes of rebellion that would otherwise have gone utterly unconsidered. Flag burning is such a rare occurrence simply because it is already a revered symbol of the American people. Those few who would see the nation undone and would burn a flag to that end would likely be caught in acts that present a clear and present danger to the people in the first place, making redundant the outlaw of flag desecration. Furthermore, you are then left with the issue of defining both what constitutes a “flag” and “desecration”; or worse still, leaving such things to be decided by those who uphold the law, opening the possibility for the abuse of authority in order to push their own world views. If I were to wear my favorite t-shirt, which so happened to have a rendition of the stars and stripes down the torso, and accidentally snapped and tore it, would it be considered an illegal desecration of the flag? If I were to purchase one of those decorative flags that clips onto the antenna of your car, would the natural wear of use be considered a desecration of the flag? Or, if a vandal were to graffiti an American flag onto the side of a private property, would the owner be in violation of the law to hire cleaners to remove the depiction? What is the flag except an almost indestructible and universal symbol for our nation’s pride and our faiths in it, so widespread and commercial that it has escaped into the public domain? In the words of the Veterans for Common Sense, an organization of over 12,000 veterans as of July 2005 when it wrote an open letter against a similar proposal, “The proposed amendment is an attack on liberty, and a disturbing distraction from the real concerns of our nation’s veterans… As veterans, we are indeed offended by those who burn or defile the flag. The flag is a cherished symbol of the freedoms we fought to defend, and we honor it as such. But we must not attempt to protect this symbol at a cost to the freedoms it represents. The Constitution of the United States has never been successfully amended to restrict liberty. To do so now would betray the promise and ideal of America. The proposed constitutional amendment to ban “desecration” of the flag threatens the civil liberties of Americans. Further, it distracts from the real world concerns of our active duty military personnel and veterans. Congress should not be in the business of undermining freedom of speech. During this time of war, we urge you to put this unnecessary and dangerous constitutional amendment aside, and instead focus on protecting our national security, insuring our service members in harm’s way have what they need to accomplish the mission, and that when they return home they get the best possible care.”

Finally, the creation of such a Bill would be overturned as unconstitutional by Judicial Review. In the cases of Texas v. Johnson and United States v. Eichmann, the Supreme Court has proven that it considers the burning of a flag to be a protected freedom of speech, and the oppression of this right to be offensive. To continue with the process of creating a bill that would attempt to outlaw the desecration of the flag would be an act in futility and would waste the time of the Congress, because inevitably an individual suing the bill and bringing it to the Courts would see it struck down. So, I urge Congress to reconsider this Bill and end it now.