[The following editorial of mine appeared in the Bloomington Herald-Times in June of 1990 just before the House voted on the first iteration of the so-called "flag protection amendment". Note: there now is a 27th Amendment. It prohibits Congress from enjoying a pay increase it votes itself until the following term. Thus, if the 104th Congress votes itself a pay increase, it won't take effect until the 105th Congress is in session.]
The US Congress is in the midst of deliberating whether to introduce the so-called "flag protection Amendment" to the states for ratification as the 27th Amendment to the Constitution. The proposed Amendment reads:
"The Congress and the states shall have power to prohibit the physical desecration of the flag of the United States."If it is ratified, the flag protection Amendment will diminish the scope of the 1st Amendment -- one of that small group of Amendments, known collectively as the "Bill of Rights", that allows us to say with pride, "It's a free country". With the text before us, let's do a little bit of analysis in order to determine how big a chunk is going to be taken out of the 1st Amendment.
Notice that the proposed Amendment refers to "the flag" rather than "a flag". Obviously, there is not one American flag; there must be millions of them. Using "the" must therefore mean that the word "flag" is being used to denote a symbol and it is the symbol embodied by a flag that is being protected.
Then, there is the word "desecration", which means taking something of a sacred or religious nature and defiling it in some way. Finally, the addition of the modifier, "physical", to the word "desecration" presumably encompasses all forms of non-verbal defilement.
Putting it all together, we can see that the flag protection Amendment strikes at the 1st Amendment in two ways: it reduces symbolic free speech and establishes "the" flag as a sacred symbol of a state religion.
The biggest danger of this proposed Amendment is that we have no way of knowing how broadly it may be interpreted. As it is, the Amendment could refer to any representation of a US flag in any context.
The issue of what is being protected should be of particular interest to the proponents of this Amendment. Let's assume that the Amendment has been ratified as the 27th Amendment. I oppose it and want to express my opposition symbolically. I also don't want to go to jail, so what am I allowed to do? What if I make a flag that resembles a US flag in every way except that each star is replaced by a little white hammer-and-sickle? Legal or illegal? What if I fly a US flag upside down as a protest? Legal or illegal? What if I alter the colors or switch the order of the stripes of a US-like flag and burn it? Legal or illegal? What if I'm of a Surrealist bent and I try the Magritte strategy: I make a US-like flag that has written on it, "This is not a flag" and then burn it? Legal or illegal? If the Magritte strategy is legal then how small am I allowed to make the phrase "This is not a flag"? Can I make it so small that it can only be read at, say, 3 feet? If so, then people some distance away won't be able to tell whether I'm burning a real or a fake flag. That means I could burn a real one every now and then and get away with it because the act of burning destroys the evidence.
People who think the Amendment is a good idea should also consider that much of their use of the flag symbol might be ruled to be "desecration" by future courts and hence illegal. Advertising displays that use American flags might fall into this category. Political cartoons that use depictions of flags might also be illegal. For example, a cartoon of George Bush wrapping himself in the flag might be deemed to be desecration of the flag symbol. Flying a US flag at night is considered inappropriate. Would that be desecration? Don't forget, if the interpretation of the Amendment is broad enough to prevent opponents from using the symbol or variants thereof for purposes of protest, it is also broad enough to prevent people from using the symbol or variants thereof for purposes of promotion.
It doesn't take a lot of imagination to see that the above examples are by no means exhaustive. Eventually, the Amendment could be interpreted to prohibit all but a small set of sacred rituals associated with the flag as symbol. Ironically, protecting the symbol could also effectively remove it from the sphere of everyday life in a way that supporters never intended.
The proposed flag protection Amendment is a bad idea badly implemented. I urge everyone to write or call their Congressional Representative and Senators and express their opposition to it.