Abusing the Flag

The most fireproof idea in American politics flares up again

Just when you thought the political circus in Washington couldn't get any more grotesque, the politicos throw us a piece of pseudo-patriotic red meat: a constitutional amendment to prohibit the burning of the American flag, which was approved by the House last week and is now headed to the Senate.

The anti-flag-desecration amendment has been around for years—ever since the Supreme Court ruled, in 1989, that burning the flag was a form of constitutionally protected free speech. Previous attempts have failed to garner enough votes in the Senate. This time, with the Senate's more conservative makeup, the amendment has a better chance. If passed by the Senate, it would still have to be ratified by two-thirds of the states to become law.

Support for the amendment has always been a cheap ticket to political grandstanding. This time, though, it has been made worse by shameless exploitation of the memory of the victims of the Sept. 11, 2001, terrorist attacks. "Ask the men and women who stood on top of the Trade Center," Republican Representative Randy Cunningham of California declared during the House debate. "Ask them and they will tell you: Pass this amendment."

"Obscene" is not too strong a word for this. If the men and women who died in the World Trade Center could talk to us, I suspect they might be a little more concerned about whether their fellow citizens are any better protected from terrorism today than four years ago.

If there is an epidemic of politically motivated flag-burning in this country, it certainly isn't very visible. When I did a news database search, it yielded a number of articles about demonstrations abroad in which the US flag was burned, several stories about the lawful disposal of old flags by the American Legion, and one report on cemetery vandalism. It's not exactly—pardon the pun—a burning issue.

The amendment against flag desecration is not only pointless, it's also pernicious. Yes, burning the flag is an offensive, outrageous, and stupid way to express your criticism of the US government. But the First Amendment says nothing about protecting only reasonable, polite, and intelligent speech. It protects all speech—including nonviolent acts that are intended as statements. As conservatives like to remind liberals when it comes to hate speech directed at minorities, living in a free society means that sometimes you have to put up with your sensibilities being profoundly offended.

In a 2001 article in The Los Angeles Times, UCLA Law School professor Eugene Volokh draws an interesting analogy between the burning of the US flag and the flying of the Confederate flag. The Confederate flag, Volokh points out, is regarded by millions of Americans—particularly African-Americans—as an offensive symbol of racism and oppression. It can also be seen as a symbol of treason and rebellion against the US government. If we prohibit desecration of the US flag, why shouldn't the same logic lead us to prohibit displays of the Confederate flag? Asks Volokh, "What would we say when flag-burning is banned but other offensive symbols are allowed? We in the majority get to suppress symbols we hate, but you in the minority don't?"

Of course, the First Amendment allows the display of other, even more offensive symbols: the Nazi swastika, for instance, or the communist hammer and sickle. If we make it illegal to desecrate or maliciously destroy actual US flags, what about offensive displays of the image of the flag—for instance, a poster using visual symbols to equate the US flag with the swastika? Who decides, ultimately, what offensive expression can and cannot be regulated?

In 1989, after the Supreme Court ruling prompted the first cries for a constitutional amendment to ban flag-burning, The Washington Post published a remarkable piece by James H. Warner, a former Marine who spent six years as a prisoner of the North Vietnamese. He recalled an exchange with a communist interrogator who showed him a photo of American antiwar protesters burning a flag and told him that this proved his cause was wrong. Warner infuriated his interrogated by countering, "That proves that I am right. In my country we are not afraid of freedom, even if it means that people disagree with us."

Some say that the flag is different from all other symbols because it stands for our freedom. But how bitterly ironic it will be if, in protecting the symbol, we gut the freedom itself.