Proposed Anti-Flag Burning Amendment
The Congress and the States shall have Power to Prohibit the Physical Desecration of the Flag of the United States.Flag Burning and Other Acts Deemed Disrespectful of
American Symbols
The Issue: Does the First Amendment allow the government to punish individuals who mutilate flags, burn draft cards, or engage in other acts deemed disrespectful of patriotic symbols?
Introduction"Symbolic expression" is a phrase often used to describe expression that is mixed with elements of conduct. The Supreme Court has made clear in a series of cases that symbolic expression (or expressive conduct) may be protected by the First Amendment. Several of these cases have been highly controversial--perhaps none more so than Texas vs Johnson (1990) reversing the conviction of a man who expressed his strong displeasure with U. S. policy by burning an American flag.
It was a case involving the burning of another symbol, however, in which the Supreme Court announced the test it would use to analyze expressive conduct cases. Paul O'Brien's burning of his draft card led to his conviction for the "knowing destruction or mutilation" of a draft card. The Supreme Court, over only one dissent, affirmed O'Brien's conviction, but in so doing offered a test that would later be used to protect other protesters. Specifically, the Court said that a law regulating expressive conduct would be upheld only if it furthered an important governmental objective unrelated to the suppression of speech, was narrowly tailored to achieve the government's legitimate objective, and the law left open ample alternative means for expression. In O'Brien's case, the Court found the law to be narrowly tailored to its important objective of "smooth and efficient functioning of the selective service system." (Many commentators were critical of the Court's decision, arguing that the law was really an attempt to suppress a dramatic form of anti-war speech.)
Daniel Schact, who performed an anti-war skit at Houston's draft center while wearing a military uniform, had better luck in 1970 in reversing his conviction for wearing a military uniform in a production other than one that "does not tend to discredit that armed force." The Court found that the statute used to prosecute Schact made an impermissible content-based distinction and violated the First Amendment.
A few years later, Harold Spence, a student at the University of Washington, was prosecuted under a state flag "improper use" law for displaying a flag in his dorm window with a peace symbol attached to it. The Court rejected the state's argument that promoting respect for the flag or preserving the flag as a symbol of the nation constituted important governmental interests unrelated to the suppression of speech, and reversed Spence's conviction.
More:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/flagburning.htmAlso:Cracking the Flag-Burning Amendment
I've gone on before about why any Constitutional Amendment to ban burning or otherwise desecrating the flag of the United States of America would be cracked the very second it was passed, but apparently asking the members of the House of Representatives to read is too much to hope for. So for the members of Senate, who vote on the proposed Amendment soon, and the members of the 50 state legislatures here in the US, allow me to offer this visual primer on How to Crack the Flag Burning Amendment.
<snip>
If you want to get fiddly about it, here are the actual government specs for the flag, dictating what the standard dimensions of the flag would be, down to the Pantone colors used in the flag.
http://www.usflag.org/flagspecs.htmlAs the proposed Amendment allows Congress and the states to prohibit desecration of the US Flag, let us assume -- for the sake of argument -- that the flag is defined by these standard dimensions. Got it? Fine. Here we go:
An American Flag? Hardly. It has only 49 stars! There's a circle where a star should be. Certainly an American Flag had 49 stars, but it didn't look like this (it looked like this).The true 49-star flag would likely be covered by the Amendment, but this one, not so much. Use it for kindling!
Three cheers for the Red, White and Gray? I think not -- use this one to swaddle a horse. Then feed that horse lots of grain
The 13 red and white stripes represent the original 13 colonies of the United States -- but what's this? One of the stripes has gone flaming pink! Clearly it's the stripe for Massachusetts. But whichever former colony it represents, we don't salute the pink, white and blue. Use this one to mop up vomit after a Socialist Party USA beer bash!
<snip>
"Protecting" the flag with a Constitutional Amendment won't solve the not-at-all pressing problem of people burning flags for political protest. They'll still do it. They'll simply do it in ways that will now additionally mock the stupidity of those who love the symbol of American freedoms more than they love actual American freedoms. And no matter how expansively Congress defines "the American Flag" there will always be something that is not the flag, but is close enough in its shape and structure to feel just like the flag. And there will be the people who will use that not-quite-flag-like object to protest.
And you know what? Good for them. They're being better Americans than those who would pass a flag-burning Amendment. Real Americans don't take away the freedoms of other Americans.
More:
http://www.scalzi.com/whatever/003585.html
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