Lasorda Bleeds Red, White & Blue

If actress Meryl Streep is credible enough to explain the presumed health risks of pesticides before Congress, then Los Angeles Dodgers General Manager Tommy Lasorda is certainly qualified to pose as a constitutional scholar and decry flag burning on Capitol Hill. Lasorda wants the Senate to pass a resolution that calls for a constitutional amendment to outlaw "desecration" of the American flag, and he testified before that body's subcommittee on the Constitution July 8. (The House passed a similar amendment by an overwhelming margin of 310 to 114 last June.)

Lasorda told a compelling story of the outrage he experienced as he witnessed a flag burning on the field at Dodger Stadium between innings of a game in 1976, and the pride he felt when outfielder Rick Monday ran from the dugout, grabbed the flaming flag from the protesters, and ran off the field with it. The assembled crowd there showed its appreciation, he recalled, by spontanteously bursting into a chorus of "God Bless America."

No doubt the protesters were punished that day, as they should have been, for trespassing, and perhaps disturbing the peace. But elevating their foolish actions to a constitutional matter would cheapen what the flag represents and the Constitution itself.

In the 1989 Texas v. Johnson decision, the U.S. Supreme Court ruled that flag burning was a form of speech protected by the First Amendment. The 5-to-4 majority rebuffed the notion that Congress or state legislatures could punish individuals for mutilating or otherwise publicly defacing certain manifestations of our national symbol.

While civil libertarians cheered the Court's decision, the majority didn't go far enough. It could have set forth a principled way to discourage flag burning without damaging the freedoms the flag represents. By not doing so, it's likely that every state legislature will spend the next several years being asked to ratify the amendment and, in the process, determine what constitutes an American flag. And we may end up with a silly and confusing "anti-desecration" law that does an injustice to the liberties of all Americans.

In the Texas case, Gregory Lee Johnson joined a demonstration in Dallas by taking a flag from the federal building and burning it while chanting anti- American slogans. A Texas law at that time prohibited "publicly mutilating, defacing, defiling, burning, or trampling" on any "flag of the United States." The Supreme Court struck down that law. But the majority never suggested that Johnson could have been legitimately prosecuted, say, for defacing public property (the flag he burned wasn't his, after all). By leaving what appears to be no way to punish those who destroy property as long as that property is an American flag, the Court may have encouraged much of the amendment fever that Tommy Lasorda's congressional testimony exemplifies.

If the amendment is ratified, Congress will have to define what constitutes a flag. And that won't be an easy job. The Texas statute Johnson violated, for instance, made it a crime to publicly deface any representation of the American flag. It didn't matter how many stars or stripes it had. It didn't even have to be a piece of cloth. As long as the person bringing the complaint believed he was witnessing the mutiliation of something that represented the American flag, a crime had been committed. (A similar anti-mutilation law remains on the books in the District of Columbia.) During the House of Representatives' debate on the proposed amendment earlier this year, Rep. Gary Ackerman (D-N.Y.) demonstrated that everything from party napkins to boxer shorts could conceivably be targets of a federal "anti-desecration" suit.

Sadly, the Supreme Court may get an opportunity to revisit this issue: The amendment has 60 Senate co-sponsors, only seven votes short of the total needed to send it to the states for ratification. If the amendment passes the Senate, and 38 state legislatures ratify it, Congress will have to determine whether, say, your album covers are your property or a protected national symbol. The Court could have caused a lot less consternation if it had said the American flag is an important symbol, but representations of it are private property, nothing more or less.

This article appeared in the Orange County Register, July 12, 1998.