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Trista's Note: I wrote this essay in the summer of 1999, while
taking a critical writing course. I hope you will read it; I think
it's an issue many people don't consider strongly enough when
proposed legislation arises because questioning those proposals
would be called un-American. The Senate last voted on this issue
March 29th, 2000; but it's an issue that comes up often. Because
this essay was written almost a year ago, a couple things may
seem outdated. 1- They didn't vote in 1999. 2- The JFK Jr. accident
is no longer the vivid example it was a year ago; but, still a
valid one. 3- Senator Chaffee is addressed in the present tense;
sadly, he died shortly after this essay was originally written.
If you want to read more about a Flag Desecration Amendment and
what it can mean, visit the sources cited at the end of this essay
or visit the ACLU's Fight for the Flag page.
After
seeing this page (and reading or not reading it), please don't
send me hate mail. This is one person's opinion. It is shared
by many Americans. It is outrageous to others. I know that. I
appreciate that you may disagree with me; please respect that
we can disagree. Thank you.
Trista
Lycosky
30 July 1999
A
Burning Issue: The Proposed Flag Desecration Amendment
After
a night of bombardment on Fort McHenry in 1814, Francis Scott
Key looked through the dissipating smoke and haze from his position
as a prisoner held on a British ship to find that the American
flag was still flying. Its presence meant that the British had
not succeeded in their attack and that America, not just the flag,
had survived the attack. Inspired by the sight of the flag, Key
captured his joy in the form of a poem that was later adopted
as our country's national anthem. My account of this event is
brief, but I believe the story could be recognizable with even
less detail. The Star-Spangled Banner is part of our collective
unconscious; we do not need to know the entire history of the
Star-Spangled Banner in order to comprehend what the flag symbolized
to our ancestors. Without knowing the story, we share with our
ancestors the same feelings for what the flag stands.
It
is not an unusual event to see video on television of foreign
men burning our flag. These men seem so far removed from me that
I can only feel pity for them because they are not exposed to
the freedoms that we have in this country. These men do not share
our history; and to them the American flag symbolizes something
very different than it does for most Americans. Telling these
men what our flag actually symbolizes will not detach their previous
feelings toward the flag. Telling them not to burn the flag will
not create respect for the symbol as we interpret it. Punishing
them for burning our flag will not fill the gap between the symbol
we recognize and the one they cannot. Attempting to enforce respect
for the flag only tells these individuals that a desecrated American
flag will offend most American people; and if one wants to get
attention, the sight of our flag engulfed in flames will surely
accomplish it.
The
situation is very much the same at home. After getting our attention
using the most sure-fired method of which he or she can think,
an individual who feels betrayed in some way by our government
or our country will not suddenly become patriotic by being placed
in jail. Yet, Congress is trying such an approach in order to
protect our flag from harm inside our borders. On June 24, the
House approved an amendment to the Constitution which says: "The
Congress shall have power to prohibit the physical desecration
of the flag of the United States (Adair, pars. 1-2)." The Amendment
next moves to the Senate for approval with a vote expected in
the late fall of this year (Fagin 4). If passed in the Senate,
the Amendment would then need to be ratified by the states. While
state support of the Amendment is very likely, the vote in the
Senate will be very close. This Amendment is an ill-advised addition
to the Constitution; with the vote approaching in the Senate,
we must speak out against the Amendment now.
Opposing
an Amendment to protect the flag may seem like an un-American
stance to take. But, Americans should not associate opposition
to this Amendment as support of flag desecration. Instead, opposition
is support of the purity of concepts embodied in the flag such
as loyalty, allegiance, and patriotism. Such actions are pledged
to a country; and when they are mandated, they lose their power.
It may pain us to see our flag mutilated, but we must ask ourselves
if banning flag desecration compromises its meaning to Americans.
As Democratic U.S. Senator and veteran Navy Seal Bob Kerrey stated
before the Senate Judiciary Committee, "Real patriotism cannot
be coerced. It must be a voluntary, unselfish, brave act to sacrifice
for others." On the same day that Kerrey spoke before the Senate,
Republic Senator and Marine Corps veteran John Chaffee testified
that Americans are given many rights, and these freedoms define
what it is to be American. He says, "The [previous Amendments
to the Constitution] have reaffirmed and expanded individual freedoms.
This proposed Amendment would not expand the list of freedoms.
This Amendment for the first time would limit individual freedom."
These two veterans, of differing political affiliations, agree
that the Flag Desecration Amendment is about more than just a
love of our flag; we can love our flag and oppose this amendment.
However, we cannot, we must not, support this amendment if we
cherish what we believe is embodied by our flag. Opposition to
this Amendment is support for the freedoms for which the flag
stands. It is support to preserve the symbolism of the flag, rather
than simply physical protection of it. And in our attempts to
preserve the precious nature of our democracy, we each are asked
to personally assess what is more important and necessary to our
society's survival: the freedoms, values, and country for which
the flag stands or the actual flag, itself. Either choice is an
American choice.
However,
when you make your choice, consider what the American flag means
to you. Among other things, I think you will find that it stands
for a democracy which, by definition, gives a voice to the people.
This voice is guaranteed by the First Amendment to our Constitution
which states that Congress may not pass any laws which lessen
our freedom of speech. Regardless of our affiliations, agendas,
or beliefs, we all share this protection of our speech. The First
Amendment protects both the popular and unpopular speech. Some
individuals feel that actions, particularly offensive actions,
are not covered by freedoms of "speech." Flag desecration is both
an unpopular and offensive action; however, the Supreme Court
found in 1989 that it is a form of speech protected by the First
Amendment. Both sides in the Texas v. Johnson case acknowledge
that flag desecration is a form of expression (United States,
"Texas v. Johnson" 2). Well prior to this case, it had also been
acknowledged that beyond speech, conduct which intends to express
an idea or message can be considered protected speech (United
States, "Texas v. Johnson" 5). In the case of Johnson, an obvious
message was communicated by the burning of a flag - the burning
occurred during a political protest against government policies
at the time - and so the burning was protected speech (United
States, "Texas v. Johnson" 2). Therefore, it was found that the
only way Texas could suppress the expression was if the government
had an interest separate from the act, such as if Johnson was
disturbing the peace (United States, "Texas v. Johnson" 6). Conviction
would therefore be due to actions or consequences separate from
the actual flag burning. It is true that there are some limits
to the freedom of speech that we may exercise. However, flag desecration
is not a personal insult or invitation for retaliation or violence;
consequently, it cannot be ruled illegal because of a perceived
imminence of lawlessness (United States, "Texas v. Johnson" 2).
The case left for banning flag desecration is its offensive, disgusting,
and unpopular nature. But again, the Supreme Court rightly stated,
"The government may not prohibit the verbal or nonverbal expression
of an idea merely because society finds the idea offensive or
disagreeable, even where our flag is involved (United States,
"Texas v. Johnson" 2)."
So,
if under the Constitution, the Supreme Court does not have the
power to set aside the flag as a unique symbol demanding protection,
the Constitution must be amended in order to provide such resources.
(As worded, the Amendment would give the power to Congress and
states would have the power to enact individual laws.) So, we
must ask whether the emotional response to the offensive, disgusting,
and unpopular nature of flag desecration or the emotional desire
to protect the flag from physical harm outweighs an individual's
current ability to defile the flag without punishment. If we began
to limit speech based on the offense we take to it, in our politically
correct times it is a wonder what would be left to say. And if
we forbid unpopular speech, we would fail to remain a democracy.
If the minority point of view is expressed in an unpopular fashion,
it is their choice; and they will be the ones effected by that
choice without the need for punishment by law. I think we would
all agree that burning or otherwise defacing our flag is not an
intelligent way to change minds. Immediately after seeing a burning
flag, we would never cry out that we now understand and agree
with the protestor's point of view. Because we are not at risk
to be so easily swayed, neither the flag nor America is at any
risk.
Moreover,
even the Citizens' Flag Alliance, which is an organization formed
for the sole purpose of supporting a Flag Amendment, admits that
flag burning is not and has never been widespread in America ("CFA
FAQ" 5). The vague language of the Amendment would result in possible
consequences far worse than a few damaged flags. With the amendment,
power is given to Congress to prohibit physical desecration of
the flag. However, Congress will define "flag" and "desecration"
after the Amendment is ratified. Lest we show faith in our government
to establish commonsense definitions, we should look to see whether
past definitions and laws support or defy common sense. In the
U.S. Code prior to the 1989 Supreme Court ruling, "Flag of the
United States" included "any flag, standard color, ensign, or
any picture or representation of either, or of any part of parts
of either, made of any substance or represented on any substance
(United States, "Crimes" 2)." Additionally, any pattern similar
to the flag, regardless of the number of stars or stripes, which
the average person would recognize as representative of the flag
also fell under the term "flag" (United States, "Crimes" 2). This
definition certainly covers a lot of ground beyond the rectangular
cloth we think of as our flag. And in the District of Columbia
prior to 1968, illegal desecration of the flag (as defined above)
not only included public mutilation, defacing, or defiling, but
also included casting contempt on the flag in word (United States,
"Flag" 2). It is still illegal in the District of Columbia to
use for advertising purposes the flag or any representation thereof
which would bring to mind the American flag (United States, "Flag"
1). If Congress plans to revert to the U.S. Code prior to the
Supreme Court ruling, the implications of such an Amendment became
all too apparent to me just this month. After the tragic accident
which claimed the life of John F. Kennedy, Jr., his wife, and
her sister, a massive outpouring of grief in the form of flowers,
notes, and candles accumulated outside his New York City home.
Among the items was an American flag upon which personal messages
were written in ink to the Kennedy family. As the week after his
death wore on, I saw additional individuals adding flag messages.
Such an act is intentional desecration of an American flag, not
merely a representation of a flag or parts thereof. With a Flag
Desecration Amendment, this act should clearly be a punishable
action. Before it is pointed out that the intent was good, remember
that onlookers define the goodness or badness behind the act.
But such a distinction is not present in the Amendment and for
good reason; supporters of the Flag Amendment simply wish to protect
the flag ("CFA FAQ" 11). This desire is absent of intent. So,
regardless of the intent we see in the act, if these people were
not charged for desecrating the flag, the Amendment would fail
to protect the flag from being desecrated. If states make a distinction
between "good" and "bad" intentions in subsequent laws, the spectrum
of acceptable conduct grows smaller as more unpopular conduct
is regulated. This regulation affects us all - if not directly,
then indirectly.
And
what of the small segment of the population who right now might
consider desecrating an American flag? They could accept the ban
and find another way to express their unhappiness. This expression
may be more acceptable to society or it may be in the form of
real damage. Perhaps they would resort to vandalism or violence;
is this a chance worth taking? Or maybe they will accept the ban
and swallow their outrage without any public display. This consequence,
too, would be damaging. As Gary May, a veteran who lost his legs
in the Vietnam War, put it before the Senate Judiciary Subcommittee:
As
offensive and painful as [flag burning] is, I still believe
that those dissenting voices need to be heard. This country
is unique and special because the minority, the unpopular,
the dissenters and the downtrodden, also have a voice and
are allowed to be heard in whatever way they choose to express
themselves that does not harm others. The freedom of expression,
even when it hurts, is the truest test of our dedication to
the belief that we have that right.
After
all, dissenters built our government, and these men did not see
the need to set aside a symbol of our country. Yet, if we allow
the Amendment to be ratified, the text would not only specifically
designate such a symbol, but it would tell dissenters that we
hold this symbol so dear that desecrating it would be a guaranteed
method to get attention. Consequently, an increase in the desecration
of flags is also a likelihood. Consider that the most likely penalties
for flag desecration would be the ones on the books prior to 1989.
These are the penalties the Citizens' Flag Alliance is calling
for ("CFA FAQ" 7). Penalties in most states were a small fine;
the federal government set a penalty up to $1000 and a year in
jail ("CFA FAQ" 7). This is a small penalty to pay for an individual
who is so distressed that they think defacing a flag will further
their cause or will at the least get them attention. This risk
cannot be downplayed. Any increase in flag desecration or prosecution
for flag desecration means increased traffic of already taxed
resources in our criminal justice system, which should be doing
its best to protect society from those who threaten our physical
well-being.
Admittedly,
I cannot predict which of these consequences will occur. I cannot
predict other ways the Amendment could hurt or help us in this
country. But, at best the Amendment and laws can only regulate
behavior within our borders. It will not reduce the number of
images we see on television of foreign men burning our flag. And
so, at best, we are exactly where we started. With the Amendment,
the American flag will still be desecrated, and it will still
offend us. The large majority of us will show courtesy to the
flag, regardless of the laws. The laws and the Amendment that
spawned them would amount to the public's acknowledgement in print
of our love for our flag, and for what? The one guaranteed result
of the Amendment is that it limits one form of free speech previously
protected. Voicing his concern over this Amendment, retired Army
Colonel Mike Pheneger says:
If
this amendment is passed and ratified, the government and
the power of the majority will deprive dissident voices of
a powerful means of speech and expression, but we will all
be less free. We can tolerate the anger and the discomfort
that flag desecration provokes and take time to reflect that
it is a small price to pay to safeguard the freedom of speech
and expression that so few people enjoy in our measure.
Right now we have an opportunity tell our Senators whether we
most treasure the protection of a symbol or the protection of
real freedoms. Personally, I will do the latter and hope that
when the smoke clears, the same flag will be flying as the one
that inspired Francis Scott Key almost 200 years ago.
Works
Cited
Adair,
Bill. "House okays flag burning amendment." St. Petersburg Times
(1999): 21 pars. Online. Internet. 30 Jul 1999. Available http://www.sptimes.com/News/62599/Worldandnation/
House_okays_flag_burn.shtml.
Chaffee,
John H. "Concerning a Constitutional Amendment Dealing with Flag
Desecration." United States Senate Judicary Committee, Washington,
D.C. 28 Apr. 1999. Online. Internet. 30 Jul 1999. Available http://www.senate.gov/~judiciary/42899jhc.htm.
"Citizens'
Flag Alliance: Frequently Asked Questions." Citizens' Flag Alliance
(1999): 15 pag. Online. Internet. 30 Jul 1999. Available http://www.cfa-inc.org/cfafaq.htm.
Fagin,
Darryl. "ADAction News and Notes." Americans for Democratic Action
(1999): 4 pag. Online. Internet. 30 Jul 1999. Available http://adaction.org/nn19990625.html.
Kerrey,
Bob. "Testimony Before The Senate Judiciary Committee: Flag Desecration
Amendment." United States Senate Judicary Committee, Washington,
D.C. 28 Apr. 1999. Online. Internet. 30 Jul 1999. Available http://www.senate.gov/
~judiciary/42899rk.htm.
May,
Gary E. "Testimony on the Proposed Constitutional Amendment to
Ban Flag Desecration." United States Senate Judicary Committee,
Washington, D.C. 20 Apr. 1999. Online. Internet. 30 Jul 1999.
Available http://www.senate.gov/~judiciary/42099gem.htm.
Pheneger,
Mike. Letter. Tampa Tribune 2 Jul. 1999.
United
States. Office of the Law Revision Counsel. "Crimes and Criminal
Procedure, Crimes: Enblems, Insignia, and Names." U.S. Code 18
USC Sec. 700 (1998): 3 pag. Online. Internet. 30 Jul. 1999. Available
http://law2.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+
t17t20+390+0++%28%29%20%20AND%20%28%2818%29%20ADJ
%20USC%29%3ACITE%20AND%20%28USC%20w%2F10%20%
28700%29%29%3ACITE%20%20AND%20%28CHAPTER%20ADJ
%20%2833%29%29%3AEXPCITE%20%20%20%20%20%20%20.
United
States. Office of the Law Revision Counsel. "Flag and Seal, Seat
of Government, and the States: The Flag." U.S. Code 4 USC Sec.
3 (1999): 2 pag. Online. Internet. 30 Jul. 1999. Available http://law2.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t01t04
+9257+0++%28%29%20%20AND%20%28%284%29%20ADJ%20USC
%29%3ACITE%20AND%20%28USC%20w%2F10%20%283%29%29
%3ACITE%20%20AND%20%28CHAPTER%20ADJ%20%281%29%29 %3AEXPCITE%20%20%20%20%20%20%20.
United
States. U.S. Supreme Court. Texas v. Johnson, 491, U.S. 397. 1989.
FindLaw. Online. Internet. 30 Jul 1999. Available http://laws.findlaw.com/US/491/397.html.
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