The Senate is expected to vote within the next two weeks on a
constitutional amendment to ban desecrating the flag. Last
summer the House of Representatives, in a vote of 286 to 130,
passed a resolution that would create a new amendment to the
Constitution allowing, “The Congress shall have the power to
prohibit the physical desecration of the flag of the United
States.” This was the sixth time since 1990 that the House had
approved a flag desecration amendment, only to have the Senate
reject it or simply fail to vote on it. But the Senate now
appears poised to erode our Constitutional right to free
speech and expression by approving it.
Efforts to protect the flag at the expense of the First
Amendment have been a common occurrence during wartime. In the
Civil War, when Union military commanders took control of
Confederate areas they prohibited the desecration of the flag.
In 1862 New Orleans became the first Confederate city to be
occupied by Union forces. General Benjamin Butler was
commander of the Union army for southern Louisiana. He issued
an order that no flag other than the national flag could be
displayed, and that “the American [flag] be treated with the
utmost deference and respect by all persons, under pain of
severe punishment.”
William Mumford tested this order when he removed the flag
atop the New Orleans branch of the U.S. Mint. He dragged the
flag through the streets before tearing it into pieces and
handing it out to his fellow Confederates. General Butler had
him arrested and subsequently hanged for his act of
desecration.
Congress twice violated the First Amendment while attempting
to protect the flag during World War I. In 1917 Congress
passed a law making it a misdemeanor to publicly desecrate the
flag in the nation’s capital. A year later, Congress passed a
law requiring the termination of any federal employee who
“when the United States is at war…in an abusive or violent
manner criticizes…the flag of the United States.” Many state
legislatures also passed flag desecration laws.
The Kansas Supreme Court ruled in 1918 that insulting the flag
was a crime. Montana passed one of the strictest flag
desecration laws during World War I. Over 200 residents of
Montana were convicted of disrespecting the flag during the
course of the war. E.V. Starr, after refusing to kiss the flag
as a sign of his patriotism, was convicted and sentenced to
ten years of hard labor.
Congress passed the first flag desecration law during the
Vietnam War, in the wake of anti-war demonstrations. In 1968
Congress passed the Federal Flag Desecration Law that
criminalized anyone who “knowingly casts contempt upon any
flag of the United States by publicly mutilating, defacing,
defiling, burning, or trampling upon it.” Shortly thereafter,
Sydney Street burned a flag after learning that a prominent
civil rights activist had been shot. Street told the crowd who
gathered around him as it burned, “…we don’t need no
[expletive] flag.” He was arrested and convicted under the new
law.
A year later the Supreme Court overturned his conviction in
the case of Street v. New York. The Court didn’t specifically
address Street’s burning of the flag. However, it ruled that
his verbal comments were protected under the First Amendment
right to free speech.
The Supreme Court finally addressed constitutional issues
concerning burning the flag in 1989. In the case of Texas v.
Johnson, the Court ruled on a Texas law that criminalized the
mistreatment of the flag, to include setting it on fire. The
Supreme Court upheld a Texas Court of Criminal Appeals ruling
that the law was unconstitutional. This effectively defined
burning the flag as a protected form of free speech.
Congress was offended by this ruling and later that year
passed the Flag Protection Act. The legislation made a
criminal out of anyone who “knowingly mutilates, defaces,
physically defiles, burns, maintains on the floor or ground,
or tramples upon any U.S. flag.” The Supreme Court responded
to the new law in 1990 in the case of U.S. v. Eichman. In a
five to four ruling the Court found that the act violated the
First Amendment right to free speech and expression.
The current effort by Congress to pass a flag desecration
amendment is largely attributable to the war in Iraq.
Supporters, which include such strange bedfellows as
Democratic Senator Diane Feinstein and Republican Senator
Orrin Hatch, insist that it’s needed in order to show respect
to veterans. They hope that the two-thirds majority needed to
forward the amendment to the states for ratification will be
too fearful to vote against it and run the risk of being
labeled “unpatriotic” or “un-American” during an election
year. But the Senate should reject it.
The flag represents all that is noble about America. It
symbolizes our rights and freedoms, and it should be treated
with respect. But it’s merely a symbol. To outlaw the right to
free speech and expression, especially regarding desecration
of the flag, would be a mockery of the freedoms and liberties
our veterans fought for and defended.
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